What Do Charlie Sheen, Nursing Homes And ABC Have in Common....

What you absolutely, positively, have to know about Charlie Sheen, nursing home negligence and arbitration.

Kentucky Nursing Homes....Still Having Problems

The Kentucky Office of the Inspector General conducted an inspection and the results are poor.

Kentucky Governor Orders Nursing Home Reform

It's about time someone did something to improve the quality of care in Kentucky nursing homes.  I handle nursing home neglect and abuse cases and am constantly frustrated by the complete disconnect between the state agencies and their inability to effect real change in a facility.

Today's Courier Journal indicated Gov. Beshear has finally done something that may offer some hope for improvement; however, we really need more drastic measures such as those offered by Attorney General Jack Conway.

Here is the article:

FRANKFORT, Ky. — Gov. Steve Beshear directed his administration Friday to immediately implement nearly two-dozen reforms aimed at combating nursing home abuse and neglect.

Beshear ordered the Cabinet for Health and Family Services to conduct the review after the Lexington Herald-Leader examined 107 citations issued by the agency over a three-year period in instances where a resident's life or safety has been endangered.

The newspaper found that only seven of the 107 cases of nursing home deaths or abuse were prosecuted as crimes and that police and coroners are rarely notified of nursing home deaths or serious injuries.

“This review will be an essential document to guide the many groups that have an interest in maintaining safe nursing homes, and to ensure that proper procedures and accountability are maintained when investigations are required for suspected cases of neglect or abuse,” Beshear said in a statement.

The citations reviewed included 18 deaths, 30 hospitalizations, five broken bones and two amputations that resulted from violations of state regulations, the newspaper reported. Thirteen residents were injured because of lapses by staff members, according to the citations.

Beshear asked cabinet Secretary Janie Miller to review state agencies' coordination with local prosecutors and law enforcement to handle the reports, the newspaper reported.

Representatives from the industry, law enforcement and victim advocates were involved in the review.

Miller said the review found, for example, that law enforcement officials sometimes weren't certain who to contact at the cabinet regarding abuse and neglect cases.

She said one of the recommendations to be implemented is the creation of regional Adult Protective Services teams, which will have more clear guidelines in working with law enforcement.

“That was identified as a significant improvement from the voices of law enforcement,” she said in an interview. “They get better at it, and we get better at communicating with them if we have just one or two people involved, rather than 10.”
Bernie Vonderheide, founder of Kentuckians for Nursing Home Reform, complimented Beshear and his administration for beginning to address the issue.

“We think that it's about time the governor of the commonwealth start making elder care a top priority,” he said.

Vonderheide, who said he had not reviewed the report, said he is glad to see a recommendation to revitalize an Elder Abuse Committee that is inactive.

Miller acknowledged the committee rarely meets and has done little to monitor nursing home abuse investigations, which it is charged with doing under state statute.

She said she doesn't know why the committee has been inactive since before she became cabinet secretary.

“This will be an important place where a lot of stakeholders can be involved in how those recommendations are implemented,” she said.

Miller said the review is the beginning of the process of reforming the way nursing home abuse and neglect cases are handled.

Attorney General Jack Conway, who participated in the process, recommended stiffer penalties for nursing home abuse and neglect and for failure to report abuse and neglect.

“We appreciate Gov. Beshear leading efforts to ensure the Cabinet for Health and Family Services is communicating and coordinating with other state agencies in order to more efficiently and effectively investigate elder abuse and neglect cases,” Conway said in a statement.

Although the state sends reports of the most serious nursing home regulatory violations to the attorney general's office, that office can prosecute only with the permission of local prosecutors.

And local prosecutors say they seldom hear about the cases.

Miller said the final report did not include Conway's recommendations because the legislature would have to amend state law. The report, she said, made recommendations that the cabinet could implement immediately.

“We're assuming that continued work will happen,” she said. “I don't know where that will take us at this point.

Tim Veno, president of the Kentucky Association of Homes and Services for the Aging, said in a statement that, “While instances of abuse and neglect in Kentucky's Long Term Care facilities are not the norm, even one instance of abuse is one too many.”

Reporter Stephenie Steitzer can be reached at (502) 875-5136.

Associated Press Article Attributes Poor Care in Nursing Homes to Understaffing and Discusses 677 Million Dollar Verdict

This week, an associated press article attributes poor care in nursing homes to understaffing and, discusses the 677 million dollar verdict against a nursing home that failed to meet minimum staffing requirements.

Louisville and Lexington Newspapers Reveal Why Patients Receive Poor Care in Nursing Homes

In the same week, the Lexington Herald Leader and the Louisville Courier Journal publish articles about the reasons for poor care in Kentucky and Indiana nursing homes.

Let's Put Senior Citizens in Jails and Put Criminals In Nursing Homes

This way the seniors would have access to showers, hobbies,

and walks, they'd receive unlimited free prescriptions, dental

and medical treatment, wheel chairs etc. and they'd receive money instead of

paying it out.

They would have constant video monitoring, so they could be

helped instantly, if they fell, or needed assistance.

Bedding would be washed twice a week, and all clothing would be

ironed and returned to them.

A guard would check on them every 20 minutes, and bring their meals

and snacks to their cell. They would have family visits in a suite built for that purpose.

They would have access to a library, weight room, spiritual counselling, pool, and education,

simple clothing, shoes, slippers, P. J.'s and legal aid would be free, on request.

Private, secure rooms for all, with an exercise outdoor yard, with gardens.

Each senior could have a computer, television., radio, and daily phone calls.

There would be a board of directors, to hear complaints, and the guards

would have a code of conduct, that would be strictly adhered to.

The "criminals" would get cold food, be left all alone, and unsupervised.

Lights off at 8pm, and showers once a week.

Live in a tiny room, and pay $5000.00 per month and have no hope

of ever getting out. Justice for all.

We Reveal Which Kentucky Nursing Home Ranked 2nd Worst In Nation....

Nursing home abuse and neglect occurs all over Kentucky. We make it our business as nursing home neglect attorneys to not only handle nursing home neglect cases when they arise, but also to report on bad nursing homes in the hopes that consumers will avoid them.

A Revealing Letter from A Nursing Home Nurse....

As a personal injury lawyer that handles nursing home abuse and neglect cases, I support Kentuckians for Nursing Home Reform.  As a supporter I receive their newsletter.  This month Bernie, the director, included the following letter he received from a nurse at a nursing home.

"From a nursing home employee....

 

I have been in health care for 26 years. I can remember when we had enough staff to care for our fellow Kentuckians, sometimes seeming as if we were family. Now it seems Boards and Administrators of care facilities keep just enough staff to run a "production plant" or "assembly line.”    We are so understaffed.

 

It's painful to know there is care you can't give because there is just not enough staff. Most of my day is spent giving just the minimal amount of care, enough to make sure my residents are comfortable, when they deserve so much more.

 

And, I am yet to see a state or ombudsman visit where the facility didn't know in advance. Oh, but it is on these days that we have proper staff, until the visit is over, then it is back to the same staffing shortage, and minimal care.

 

Our elderly Americans should be our most celebrated citizens. It is they who prayed for us, raised us, built our schools, roads, and fought in wars to protect our rights, and freedoms, in hopes that their later years would be comfortable and worry free. But the sadness is they lose everything they worked for all their life for payment for care they don't and can't receive.  

 

I enjoy my residents and the service I can give them, have grown quite fond of them, and in some instances, I am the only face they see.  I would regret losing that bond, which is where my dilemma lies. I don't want to lose my job. But I would dearly love to see the media get involved and bring this petition to the average Kentuckian, would even talk to the media myself, but I am not sure how to proceed. Any advice in how I could help would very much be appreciated."

We need your help now more than ever, conact Kentuckians for Nursing Home Reform to find out how you can help.

 

Hans

Study on Nursing Homes Reveals....

Because I am one of only a handful of personal injury lawyers in Kentucky that handle nursing home negligence cases, I am frrequently contacted by people who believe their loved one received poor care while a nursing home resident.  Understaffing, infrequent patient repositioning leading to pressure sores, dehydration and a lack of general personal care are the major complaints.  Not to mention overmedication and physical and chemical restraints. 

In reviewing theses cases we have noticed that the majority of complaints arise out of the care given at for profit nursing homes.

Well.....

     It appears our very non-scientific assumption has been given scientific credibility.  Non-profit nursing homes provide better care than their profit driven counterparts.  At least that's the conclusion of Canadian researchers who reviewed the results of 82 studies from 1965 to 2003.  "Based on their findings, the review authors calculated that if all nursing homes were non-profit, nursing home residents in the United States would receive 500,000 more hours of nursing care per day, while those in Canada would receive 42,000 more hours of nursing care per day."

The National Institute on Aging has some excellent information to help you choose a good home.

Kentucky Nursing Home Added to Federal Oversight List

Another Kentucky nursing home, Madison Manor in Richmond, has been added to the federal Special Focus Facilities list.  The list highlights facilities that have more problems than most nursing homes or more severe problems, or a pattern of problems.  You may recall our previous blog entry highlighting abuse of a resident that was caught on video tape.

Last year, Medicare came out with its "Bad List" of nursing homes that need significant improvement.  We listed all of the Kentucky nursing homes here. 

Nursing home negligence and abuse can be avoided by researching the home before admitting your loved one.  We have written a book to assist you in locating a nursing home in Kentucky and you can download it for FREE here.

hans

Landmark $11 million Dolllar Nursing Home Verdict

PHOENIX, March 20 /PRNewswire/ -- An Arizona jury today awarded a landmark verdict of $11 million to the widow of a 36-year-old man with traumatic brain injury who died after ingesting foreign objects while in the care of Liberty Manor Residency, a Phoenix assisted living facility. The verdict included $2 million for the decedent, $5 million for the wife and $4 million in punitive damages. It was the largest verdict ever awarded against an assisted living facility in the United States.

"I want this to be a lasting victory for all individuals with TBI or other disabilities living in assisted living centers or group homes," said Lydia Scherrer, widow of Earl Scherrer, who died May 7, 2006, at the age of 36.

Earl Scherrer suffered a severe traumatic brain injury as a result of a car accident in 1996. He lapsed into a coma and was not expected to recover. Despite doctors' assessment that Mr. Scherrer's condition was permanent, Lydia Scherrer refused to disconnect her husband's life support. Earl Scherrer remained in a coma for 16 months before he began to slowly emerge. With his wife's nurturing and support, he slowly started to speak, albeit slowly. Mrs. Scherrer worked with her husband day after day, using first-and second-grade reading and math textbooks and other elementary learning tools to stimulate his brain function and coax him to reach his full potential.

Lydia Scherrer devoted many hours per week to her husband's recovery, but she also had to work and was forced to turn to assisted living and residential facilities to provide the 24-hour care her husband needed. For years, she visited him faithfully on her days off, every Tuesday and Wednesday, checking him out of the facility and taking him home.

On April 7, 2006, Mrs. Scherrer placed her husband in Liberty Manor Residency, a facility that purported to provide 24-hour supervision of its residents. One month later - on May 7, 2006 - she received a call saying her husband had been vomiting. Mrs. Scherrer rushed over to Liberty Manor, brought her husband home and gave him a bath. Within a matter of minutes, he began vomiting black matter and died in her arms.

Autopsy results showed a number of items - including plastic bags, unopened catsup packets, candy wrappers and paper towels - were found in Earl Scherrer's stomach and small intestines. The medical examiner determined these foreign objects were significant contributing factors to his death. The autopsy read in part, "hypertensive heart disease due to mechanical obstruction of the GI [gastrointestinal tract] from the foreign objects."

Lydia Scherrer, represented by Craig Knapp, of the Scottsdale law firm of Knapp & Roberts, brought claims against Liberty Manor for abuse and neglect, wrongful death and punitive damages.

At trial, it came to light that Liberty Manor made numerous false entries in its charts with respect to Earl Scherrer's care, including notations of care on days when Mrs. Scherrer had checked him out of the facility. Liberty Manor was also unable to produce Mr. Scherrer's alleged caregiver, an employee named Raul.

"Lydia Scherrer did not walk away from her husband, in life or in death," said her attorney, Craig Knapp. "Her hope is that this verdict will force the assisted living facility industry to set and meet higher standards of care for their residents, resulting in enhanced protections for the defenseless individuals trusted to the care of others.

HOUSE BILL 318…

COMES UP FOR A VOTE

IN THE HOUSE HEALTH & WELFARE COMMITTEE

THIS THURSDAY FEB. 19

AT NOON IN ROOM 169

OF THE CAPITOL ANNEX

IN FRANKFORT

 

THIS IS THE BILL THAT WILL REQUIRE

ALL NURSING HOMES IN THE STATE

TO POST THEIR RATING

BY THE NEW FEDERAL FIVE-STAR RATING SYSTEM

IN A PROMINENT PLACE IN THEIR FACILITY.

 

HERE'S WHAT YOU CAN DO

TO HELP GET THIS BILL PASSED AND

OUT OF THIS COMMITTEE AND ON TO

A VOTE ON THE FLOOR OF THE HOUSE.

 

1.  Call 1-800-372-7181 and ask the operator to send a message to the members of the House Health & Welfare Committee telling them that you want them to vote for HB 318.

 

The members of the Health & Welfare Committee are:

 

Rep. Tom Burch, Louisville (chair)

Rep. Bob DeWeese, Louisville (vice chair)

Rep. David Watkins, Henderson, (vice chair)

Rep. John Arnold, Sturgis

Rep. Scott Brinkman, Louisville

Rep. John "Bam" Carney, Campbellsville

Rep. Robert Damron, Nicholasville

Rep. Brent Housman, Paducah

Rep. Joni Jenkins, Shively

Rep. Mary Lou Marzian, Louisville

Rep. Reginald Meeks, Louisville

Rep. Tim Moore, Elizabethtown

Rep. Darryl Owens, Louisville

Rep. Ruth Ann Palumbo, Lexington

Rep. Susan Westrom, Lexington

Rep. Addia Wuchner, Burlington

 

2.  If you are a constituent of any of these, be sure to tell them that in your message.

 

3.  Follow up your call with a brief e-mail to each of them.  You can get their e-mail address by going to

http://www.lrc.ky.gov/whoswho/email.htm

 

4.  Attend the meeting yourself.  Come early and meet every committee member telling him or her you would like their vote for HB 318.  Don't be bashful.  Legislators are very nice people and will be happy to talk to you.

And if you can, thank them afterwards for their support.

 

5.  Call me if you have any questions……

BERNIE VONDERHEIDE

KENTUCKIANS FOR NURSING HOME REFORM

1530 Nicholasville Road

Lexington, KY  40503

 

Tel:  (859) 312-5617

The Myths of Arbitration

I hate mandatory arbitration agreements, especially in healthcare cases.  Nursing homes force residents, or their family members, to sign these agreements before admission to the facility.  They then injur the resident and hide behind the arbitration agreement to shield them from have a jury pass judgment on their care in an open courtroom that is subject to public scrutiny.  Many of these companies, and the legislators whose pockets they line with campaign contributions, point to all sort of supposed "benefits" to arbitration.  These benefits are mostly myths:

THE ARBITRATION FAIRNESS ACT
MYTHS AND FACTS

The Arbitration Fairness Act (AFA) would continue to allow voluntary arbitration while preserving the right to trial by jury.  The bill would prohibit a corporation from forcing a consumer into a rigged mandatory arbitration system where the corporation hand-picked the arbitrator and all of the rules of the process before a dispute even occurred. 

Myth: The AFA prohibits arbitration.
Fact: The AFA encourages voluntary arbitration; it only prohibits corporations from forcing mandatory clauses on consumers without them having a chance to negotiate the terms and often without them knowing about it. 

Example: When admitting his father into a nursing home, Charles Miller Jr. signed a lengthy contract that, unbeknownst to him at the time, contained a binding mandatory arbitration clause.  His father was not seen by a physician until three weeks after his admission, during which time he lost 19 pounds and suffered from dehydration and pneumonia, all of which led to his death.  Charles Miller Jr. filed a claim against the nursing home corporation, but a court held that because he had signed this contract, he would be forced into arbitration for his claims against the nursing home, under the terms the nursing home corporation chose to put into the contract.  Because Charles Miller Jr. had unknowingly signed a contract that contained a mandatory arbitration clause before any dispute had arisen, he was bound by its terms, no matter how unjust.

Myth: Most consumers favor binding mandatory arbitration. 
Fact: Consumers favor voluntary arbitration and being given the choice to arbitrate. Would an employee with a claim against Halliburton want Halliburton deciding how her claim should be handled?  Would a homeowner with a claim against his home contractor want the contractor deciding how his claim should be handled?

The Chamber of Commerce's recent study, which purported to show that voters did not support HR 3010, asked voters: "If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose?" (Emphasis added.)  But what they didn't tell these voters is that binding mandatory arbitration takes away a consumer's choice. Under the current system, consumers are not allowed to choose which option is best for them.  They are not allowed to choose to file a claim in court nor are they allowed to choose who the arbitrator will be, or even what state they will have to arbitrate the claim in.  Instead, they are forced into an arbitration system that is set up to favor the corporation and trample on the rights of the consumer.  When consumers are given the choice to arbitrate after a dispute has arisen, they gain bargaining power and are better able to enter into an arbitration system that is fair. 

Myth: Arbitrators are neutral, unbiased decision-makers.
Fact:  Binding arbitration favors corporations because only corporations are repeat users of arbitration companies. 
If an arbitration company wants to be used in a company's mass consumer or employment contracts, the arbitration company has a huge financial incentive to appear favorable to those businesses in arbitration proceedings.  Why would a company choose an arbitrator that rules against them? 

Myth: Arbitration is cheap and more accessible to consumers. 
Fact: Arbitration is so expensive that most consumers will not be able to pursue their claim against a corporation because they can't afford the costs of the arbitrator. 

Under mandatory arbitration clauses, consumers must pay steep filing fees just to initiate a case-seldom less than $750 – and pay their share of the arbitrator's hourly charges, which are routinely $400 or more per hour.  All these fees must be deposited in advance and almost always amount to thousands of dollars.  In addition, arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer.

Myth: Arbitrators are like judges; they have to follow the law and publicly state the reasons they made their decision. 
Fact: Arbitrators are not bound by any laws.  They do not have to follow the law and they don't have make public or even provide to the consumer any explanation for ruling the way that they did. 

Most arbitration clauses require that proceedings be kept confidential, even if the case raises important public policy issues.  As a result, only the corporation can track past decisions and know which arbitrators have ruled for them.  In addition, arbitrators do not set or follow judicial precedent, something our judicial system requires to ensure consistency and fairness in legal proceedings. 

10 Worst States for Overall Nursing Home Staffing...

Following up on a prior post about the 10 Worst States for Nursing Home Nurse Staffing, I thought I'd follow up and reveal the 10 Worst States for Overall Staffing (not limited to nurses).   Again, surprisingly, Kentucky was not in the top ten.

According to US News and World Report:

Nursing Homes: 10 Worst States for Overall Staffing

Low nurse turnover and high quality of nursing care are vital to the well being of home residents

Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.

The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate overall staffing.

Rank	State	Total, all nursing homes	1 star
1	Louisiana	269	62.5 percent
2	Georgia	342	57.6 percent
3	Tennessee	293	44.7 percent
4	Texas	1,042	41.4 percent
5	Virginia	263	39.2 percent
6	Indiana	482	38.6 percent
7	New Mexico	46	37.0 percent
8	West Virginia	123	33.3 percent
9	Missouri	489	31.1 percent
10	North Carolina	386	30.3 percent

Ten Worst States for Nursing Home Nurse Staffing

Kentucky, like  a number of other states, do not have mandatory minimum staffing requirements for nursing homes (if you want to do something about it, contact Bernie at Kentuckians for Nursing Home Reform). 
So, I was honestly surprised when Kentucky didn't make the top ten list of worst states for nursing home staffing (but I bet they were number 11).  That being said, here is the list as published by U.S News and World Report.

Nursing Homes: 10 Worst States for Nurse Staffing

How many hours a day are home residents under the direct care of a registered nurse?

Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site
now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.

The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate staffing by registered nurses.

Rank	State	Total, all nursing homes	1 star
1	Louisiana	269	75.1 percent
2	Georgia	342	66.1 percent
3	Arkansas	225	54.7 percent
4	Texas	1,042	47.2 percent
5	Oklahoma	295	46.1 percent
6	Tennessee	293	41.6 percent
7	Missouri	489	41.1 percent
8	Virginia	263	37.6 percent
9	Indiana	482	32.6 percent
10	Alabama	218	31.7 percent

USA Today Study Reveals Non-Profit Nursing Homes are Better

USA Today has published the results of Medicare's 5 year long study to determine the best places to get nursing home care.  They have used any easy to understand 5-star system similar to that used to rank hotels and restaurants.
You can read the article and look up a particular nursing home by following this link:  USAToday Article and Results
The article concludes that non-profit nursing homes and nursing homes associated with hospitals consistently rank higher. 
This begs the question that frustrates lawyers that handle nursing home negligence cases.  Why doesn't the government demand transparency of corporations owning and operating nursing homes?  Instead, they are allowed to participate in a "Corporate Shell Game"  where multiples layers of corporations and LLCs are set up to hide assets from the individuals who are injured.

In a separate post, I'll discuss what I believe state and federal governments should be doing to protect our nursing home residents.
hans

Kentucky Nursing Home Abuse Caught on Video Tape

Those of us lawyers that handle nursing home abuse and negligence cases are always confronted with the problem that often the resident is unable to tell us what happened to them or who did it.  That's the problem with nursing home abuse cases, the abuse doesn't occur when the family is around.  This often leads to a problem proving the case.  Some advocates of nursing home reform have called for video cameras to be installed in all facilities.  This likely will never occure due to privacy concerns of other residents.
One Richmond, Kentucky family ignored those privacy concerns in favor of finding out what was going on with their loved one.  According to the Lexington-Herald Leader, the Attorney General's office has opened an investigation into the care provided at a Richmond, Kentucky facility. "The investigation comes after the family of an 84-year-old resident hid a video camera in her room at Madison Manor in Richmond.  The Lexington Herald-Leader reported that the videotape shows nursing assistants at Madison Manor physically abusing and taunting Armeda Thomas of Irvine and failing to feed and clean her. Madison Manor is part of the Richmond Health and Rehabilitation Complex, owned by Wisconsin-based Extendicare."
Don't even get me started on the corporate shell game these nursing homes play to insulate themselves from lawsuits for abuse of residents.  That's a post for a different day.
If you're interested in learning more about nursing home abuse, click here to watch my recent video, or download my Free Report on What You Absolutely Positively Most Know Before Choosing a Nursing Home.

hans