California Elder Abuse Lawyer Blog

Yesterday I attended a conference on how to treat dementia without resorting to use of psychotropic medications. Under California law, psychotropic drugs are any drug used to modify behavior. (1)

One of the major highlights of the day was that nationwide, use of these drugs in the elderly is down about 5% and down about 6% in California. But in Ventura County, use of the drugs has dropped 20%. Clearly, Ventura is ahead of both the state and nation when it comes to embracing the new guidelines surrounding these drugs.

A second highlight was seeing a doctor and medical director like Jonathan Evans, President-Elect of the American Medical Directors Association (AMDA) give out suggestion after suggestion on how to handle the behaviors of dementia patients without resorting to drugs. It was so refreshing to hear how open-minded he was, how genuinely concerned he was about the residents of the nursing home, and how committed he was to finding the underlying cause of the behavior.

The day ended on a high note as...

Continue reading "Client's Corner Blog: Building Relationship Symposium The New Medicine for Treating Dementia on March 7 in Ventura County" »

As an oncology nurse, only a fraction of my day involved administering patient care and filling out paperwork, as most people might think. Rather, I spent an overwhelming amount of time on the phone with the primary care doctor, the surgeon, the oncologist, the pain management doctor, and the hospitalist, trying to make sure that all of these doctors were communicating with each other, and most importantly, communicating with the patient.

Unfortunately, outside of the hospital, most people do not have an advocate to coordinate this complex web of medical care. Although doctors may think patients understand that the doctors are busy and are doing the best they can, the opposite is true. Patients who do not have some healthcare background are left without a way to navigate through the system on their own. They feel isolated and uncared for, and turn to lawyers to help make them whole after poor communications result in bad outcomes.

Continue reading "Client's Corner Blog: The importance of patient-doctor communication" »

What is a burning limits insurance provision?

Burning limits is a provision in some liability policies that controls what the insurer will pay for the defense of the claim. What this provision does is take the money spent on defense and investigation out of the overall pool of money available to settle the claim. Thus, the more money spent on defense of a case, the less money is available to make the claim go away.

What is the effect of these policies?

1. Discourages settlement

Say the insurance company has a 1 million dollar policy for the defense of each person injured. At the beginning of a case, the defense firm could offer almost the full 1 million for settlement, because the defense firm has not spent much money on the case. If that happened, most cases would settle.

Yet, the defense firm with a burning limits policy will respond to a plaintiff's offer to settle with an extremely low figure, perhaps using the excuse that the plaintiff has yet to prove any of the causes of action filed. In reality, the plaintiff's case may be very strong, the defense firm knows that it is strong, yet this firm has an ulterior motive to bill the policy and settle later if/when the case is further developed.

Continue reading ""Client's Corner" Blog on The Unethical Nature of Burning Limits Insurance Provisions" »

Last week, there was big news that state officials fined 12 California hospitals $785,000 for mistakes that endangered patients, including the following:
-doctor's improper use of a laser during surgery that caused a clot and killed the patient
-doctor's removal of the wrong kidney (the healthy one), leaving the patient with a diseased kidney and causing the patient to experience chronic fatigue and depression

Both of these incidents occurred at Kaiser hospitals, despite the fact that Kaiser is known for quality and uniformity of patient care. If these incidents are occurring at Kaiser, then the culture of our hospitals needs to change.

When I worked as a nurse at hospitals throughout Los Angeles, my supervisors always emphasized a culture of safety. Despite the fact that I was told the culture of the hospital was safe, the hospital administrators actions did not always match their words. For example, when encountered with a new procedure that I had never done before, I needed an experienced nurse to demonstrate it. Yet, I often spent hours trying to recruit someone to come show me. The long wait frustrated my patients and their doctors and caused all of us stress and anxiety, because I could not satisfy the physicians' orders, even priority ones, until another nurse came to assist me.

For the most part, after some pleading, a charge nurse or other nurse on the floor would help me. All too often, the charge nurse was at a meeting and everyone else was busy and then I would wait. Sometimes, there was no one to help and after hours of waiting, a nurse would tell me where the tools were located and how to do the procedure and say "Good luck." I would try to look on the Intranet for a hospital policy or on the Internet at a nursing school website, but then I crossed my fingers and did what I had to do.

After experiences like this one, I could not help thinking, how would this situation have gone down if there was a true culture of safety?

Continue reading ""Client's Corner" Blog on the Need for a Culture of Safety in Hospitals " »

The Medical Injury Compensation Reform Act of 1975 or MICRA does not limit past and future medical costs (which must be proven) or lost wages (must also be proven), but it does limit pain and suffering and other non-economic damages to $250,000.

When faced with a situation where there is a minimal lapse in judgment, such as a failure to diagnose heartburn properly, resulting in only a few extra weeks or months of pain after meals and second or third opinions with gastrointestinal experts, $250,000 seems like enough or maybe even too much compensation for pain and suffering.

However, when faced with a situation where there is a major lapse in judgment, such as:
a) diagnosis of heart burn instead of heart attack,
b) amputation of a limb that supposedly had cancer when it was later learned that a different patient had cancer and the leg did not need to be amputated, or
c) failure to tell a patient that her scans showed signs of cancer until the patient followed up three years later when it was Stage IV and now has a low survival rate
d) death of a child after a "routine" procedure
. . .

Continue reading ""Client's Corner" Blog on the Need to Reexamine MICRA's Limitations on Non-Economic Damages in Medical Malpractice " »

As you may remember from last month, California Evidence Code Section 1157(a) provides the following evidence immunity:

Neither the proceedings nor the records of organized committees of medical, medical-dental, podiatric, registered dietitian, psychological, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or veterinary staffs in hospitals, or of a peer review body, as defined in Section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for that peer review body, or medical or dental review or dental hygienist review or chiropractic review or podiatric review or registered dietitian review or veterinary review or acupuncturist review committees of local medical, dental, dental hygienist, podiatric, dietetic, veterinary, acupuncture, or chiropractic societies, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or psychological review committees of state or local marriage and family therapist, state or local licensed clinical social worker, state or local licensed professional clinical counselor, or state or local psychological associations or societies having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery. (Emphasis added).

The good news is: I found some case law holding that 1157(a) requires in-camera review by a judge who inspects and excludes only the portions of files that reflect the proceedings of staff committees conforming to the specifications of the immunity statute.(1) Yet another case holds that the burden of proof is on the party claiming immunity of the records in question.(2) Further, I found a case discussing the legislative context of 1157(a) as limited to evaluation and improvement of doctors and staff members, including medical malpractice involving those staff.(3) The purpose is to improve quality of patient care by improving the candor in which doctors and staff members are discussed by Quality Assurance Committees in hospitals. At least two cases have held that administrative documents do not count as the proceedings and records of Quality Assurance Committees that evaluate and improve the quality of patient care.(4) Nor does the court have the power to expand this immunity.(5) Thus, many of my 1157(a) questions have been cleared up.

Now for the bad news...

Continue reading ""Client's Corner" Blog on 1157 Revisited (original blog November 7, 2012)" »

The Client's Corner Blog is back in action.

Last week, we filed a complaint involving elder abuse at a local hospital. This case involves a once prominent businessman who was given few if any bathroom breaks, was drugged and ignored, had dehydration that went untreated, and whose beard was shaved in the middle of the night for "misbehavior." The result: the man fears hospitals and nurses so much that his family takes shifts at his bedside.

As a Registered Nurse and former employee of a hospital, I never imagined that the kind of elder abuse and rights violations we see in nursing homes could occur in a Los Angeles County hospital. It's was unthinkable and unimaginable that generally well-trained Registered Nurses could participate in such an injustice. Though less prevalent than elder abuse and neglect in nursing homes, elder abuse in acute care hospitals is equally as alarming and potentially more harmful, as the average elder is dealing with critical healthcare issues while hospitalized.

Perhaps as a result, the California Department of Public Health (CDPH) recently released a Notice of Proposed Rulemaking (NPRM) regarding application of administrative penalties under Title 22 of the California Code of Regulations to Acute Care Hospitals, Acute Psychiatric Hospitals, and Special Hospitals. Comments are due Monday December 10 at 5 PM to Regulations@cdph.ca.gov (your letter must include the package identifier DPH-09-012 in the subject line).

Continue reading ""Client's Corner" Blog on California Department of Public Health (CDPH) Proposed Rules" »

I once participated in a quality assurance meeting for a non-harmful event that happened to one of my patients. The issues were disclosed to the patient and apologies were made. The patient went on her way and we went on ours. I always thought that that was the right call. Be honest. Explain what happened. Apologize. Apparently, I could not have been more wrong.

In response to a recent request for discovery of information, the defendant objected and refused to answer 80 out of 112 of our questions based on California Evidence Code Section 1157, the so-called "quality assurance" immunity. How that many topics could possibly have been discussed in quality assurance meetings at a moderate sized nursing home is baffling to me. It is just not possible that 80 different questions sought information that directly came from the "records of organized committees...having the responsibility of evaluation and improvement of the quality of care..." California Evidence Code Section 1157(a). It is far more likely that the nursing home is abusing this immunity, but how do we prove it?

The aim of the quality assurance protection appears to be to allow for patient safety information to be discussed internally, without subjecting hospitals and nursing homes to litigation. I agree with this goal. I would only make one change. Just as prosecutorial immunity requires a motion for a "protective order" to be made to the judge, the same should apply here.

Continue reading ""Client's Corner" Blog on the Abuse of California's Quality Assurance Immunity" »

In a recent trial, one LVN (Licensed Vocational Nurse) was providing wound care for 193 residents at a skilled nursing facility! Many of these residents suffered from pressure ulcers, diabetic skin injuries, abrasions or other skin issues. Despite the fact that an LVN is not licensed to do nursing assessments in California, this particular wound care LVN was responsible for assessing, treating, and documenting skin care as well as updating the plan of care for every resident of the facility.

This enlarged scope of practice for the LVN is not only illegal under California's LVN Practice Act, it is unethical. Still, as an RN (Registered Nurse), I find myself questioning what care an LVN is and is not able to provide. So I took a look at the California Nurse and LVN Practice Acts and here is what I found.

Assessment includes data collection, analysis, synthesis, and evaluation of data. Under California Code of Regulations Title 16 Section 2518(a), LVNs may do a basic assessment, which allows the LVN to gather data. However, an LVN must report all data collected to an RN for the RN to analyze, synthesize, and evaluate each and every time an LVN assesses (California Code of Regulations Title 22 Section 70215, Business and Professions Code Section 2589). An RN then determines if additional assessment or intervention is required (California Code of Regulations Title 22 Section 70215, Business and Professions Code Section 2725). Thus, RNs must be involved in the care of residents, so that they are able to determine if the general appearance of the resident is abnormal and needs to be reported reported to the Medical Doctor (MD).

Continue reading ""Client's Corner" Blog on The Right Care from the Right Nurse " »

A few weeks ago, I talked about the importance of appointing one "personal representative" for your loved one. In particular, I discussed the risks of oversedation and hinted that the only safe way to ensure your loved one's wishes are honored is to nominate one person to make all the decisions in accordance with an advanced directive.

This week, I want to touch on the importance of a personal representative from a legal standpoint before, during and after medical care is provided. This topic is an important one, especially for those over 18 whose parents will not be assumed to be the decision makers. In my own experience, I have witnessed patients name spouses, children, and even children-in-law as personal representatives, depending on who they think is the best person to handle a healthcare emergency or end of life care issues.

One major reason to name a personal representative is that that person has the right to receive all medical information about the patient and has full authority to act for his or her loved one in the use and disclosure of Protected Health Information (subject to some exceptions). Therefore, personal representatives play a role in the preventative aspects of healthcare, in particular ensuring that the right medications and treatments are provided and that the patient's wishes are honored. See HIPAA Personal Representative Handout.

In addition, an officially designated personal representative has the right to request a copy of medical records. While this may seem like a minor issue when everything is going well and doctors are communicating, when things are not going smoothly, it helps to have a second person who is able to sign a HIPAA authorization to release records from doctors to hospitals or vice versa, especially if your loved one is too ill to take care of it. Thus, the personal representative also plays a role during the provision of care by facilitating the efficient use and disclosure of Protected Health Information. See Department of Health & Human Services website.

Finally, there is the continuity of care issue.

Continue reading ""Client's Corner" Blog on HIPAA Personal Representative " »

I often hear news reports of bioethical arguments against technology and testing on animals, but I never hear news about the countless nursing home residents and families who experience the suffering and misery of inadequate front line care. You might ask how I know about this issue if it's so underreported. That is a great question. The reason I am well aware of this issue is that I worked as an inpatient hospital nurse for several years and observed the state of residents who regularly arrived from nursing homes for preventable and treatable conditions that somehow spiraled out of control. Even though I have since transitioned to the legal field, I still hear these horrific stories. Every single time I tell someone that I work at an elder abuse firm, the response is always "Oh my, do I have an awful story for you about my mother, father, brother, sister, husband, wife, etc." The fact that so many families are effected by poor care is an unfortunate statistic.

Yet, as I said above, little is done to call attention to these stories. That is, until now. I just learned that 2,000 Illinois nursing home workers are picketing in front of 50 nursing homes across Illinois in order to challenge owners to invest some of their 50 million in 2011 profits to ensure that residents get the quality of care that they deserve. In particular, nurses are complaining about inadequate staff, high staff turnover, supply shortages and even food shortages. Although Illinois has legislation to enforce minimum staff and quality of care, these laws are not being enforced and as a result, residents' needs not being met. See the article.

Continue reading ""Client's Corner" Blog - Nursing Home Staff Pickett for Better Care" »

Happy Friday! Since California nursing homes have a legal duty to provide enough staff to ensure proper resident care and resident health outcomes, I thought it would be helpful for you to learn the staffing standards, so that you are able to compare different facilities before your loved one is admitted there. For those of you who are interested, I will describe how to calculate this standard, so you yourself may ensure the facility is in compliance with the law. By all means, if your facility is not meeting the standard, it should be reported to your local County Ombudsman.

Staffing means how many human beings are employed to provide care to patients. The ratio of staff to patients is determined by how many nursing hours are provided to each patient per 24 hour period. This is known as a "per patient day" or "PPD" standard. Sometimes it is also referred to as "NHPPD" or "nursing hours per patient day." The California minimum is 3.2 hours PPD, which means Registered Nurse (RN), Licensed Vocational Nurse (LVN), Certified Nurses Aid (CNA) hours must add up to at least 3.2. See California Department of Public Health All Facilities Letter February 15, 2000.

To calculate, if there are 10 residents and during a 24 hour period, and 4 CNAs plus 1 RN work an 8 hour shift, then there are 4 x 8 = 32 CNA hours and 1 x 8 = 8 RN hours of nursing care provided to 10 residents. Divide the total 40 hours of nursing care by 10 residents to arrive at 4.0 hours per resident PPD. This example would comply with California law.

Note: this information is reported publicly and is available on the Medicare website. Just search a geographic area or nursing home name, select a nursing home, then select the "staffing" tab. Add up total nursing hours, including CNA, LVN, and RN to find the total nursing hours PPD.

If you found this topic helpful or not, please share your reasons why and any ideas you have to make this blog better. My email is kate@jodymoorelaw.com.

Sincerely,
Kate

Hello! I hope everyone is well! As a Registered Nurse, one of the things I always tried to do for my hospital patients was to instill in them or their families the confidence to advocate for their health needs. Currently, in our healthcare system, there may be times that the Nurses and other members of the healthcare team are not present when you or your loved one needs an advocate. Therefore, I have a couple of tips for how anyone can ensure that their loved one receives the best healthcare possible.

First, do your research. Research the hospitals, nursing homes, primary care doctors, surgeons, and other healthcare providers before you rely on those people and facilities for health needs. If the illness or surgery is complex, do not be afraid to seek a second opinion from another doctor. Also, get to know the doctors and other healthcare providers, as people who know you are inclined to provide you with better care.

Second, visit your loved one often and at all hours of the day. Visiting shows healthcare providers, including doctors, nurses and others, that you really value the health of the person that they are caring for. Although you may be limited somewhat by visiting hours, showing up at different times also will prevent healthcare providers from "putting on a good face" or waiting to provide hygiene for an elder until right before your normal visiting time.

Continue reading "California "Client's Corner" Blog on Becoming a Healthcare Advocate " »

All too often, I hear stories about friends and family who are given too many narcotics or psychotropic medications,* causing them to become oversedated, too sleepy to participate in daily activities, and too drugged to enjoy life. To make sure this does not happen to you or your loved one, please educate yourself by reading the next few paragraphs and learning more about your rights.

1. If you or someone you know is SENSITIVE to the EFFECTS of medications, be sure to inform doctors and other healthcare providers like hospital and nursing home staff.

2. If your family member or friend is not capable of making his or her own decisions, APPOINT ONE PERSON as Personal Representative.** Having one person designated as decision maker prevents doctors, hospitals, and nursing homes from asking different people every time they seek consent for a treatment. More importantly, it keeps your loved one safe because it prevents conflict, and it keeps different people from making contradictory decisions.

3. If you or your loved one has NEVER TAKEN narcotic or psychotherapeutic drugs in the past, make sure that the doctor WHO IS ORDERING THE MEDICINE explains the medical reason for the medication, the risks, the benefits, and the alternatives including non-drug options BEFORE YOU SIGN ANYTHING.

4. Unless it is an emergency or other special criteria are met, doctors are required to obtain informed consent BEFORE starting psychotropic drugs for elderly or minors.*** Consent does not mean a nurse calling you and telling you that a doctor recommends so and so drug and then asking you to sign a form the next time you visit the hospital or nursing home. This practice is not legal and it violates your rights! Informed Consent is a CONVERSATION whereby a doctor informs you of the reason for the medicine, as well as its risks/benefits/alternatives and the right to refuse.

5. Help us put a stop to oversedation by knowing and asserting your rights.

Sincerely,
Kate

*Examples of narcotic painkillers are hydrocodone (Vicodin, Norco, Lortab), morphin (MS Contin, Kadian, Avinza), oxycodone (OxyContin, Percocet, Percodan), tramadol (Ultram), methadone (Dolophine, Methadose), from WebMD.

Examples of psychotherapeutic or psychotropic drugs are Clonazepam (Klonopin), Lorazepam (Ativan), Alprazolam (Xanax), Buspirone (Buspar), Chlorpromazine (Thorazine), Haloperidol (Haldol), Risperidone (Risperdal), Olanzapine (Zyprexa), Quetiapine (Seroquel), Clozapine (Clorazil), Ziprasidone (Geodon), Aripiprazole (Abilify), Paliperidone (Invega), Fluoxetine (Prozac), Citalopram (Celexa), Sertraline (Zoloft), Paroxetine (Paxil), Escitalopram (Lexapro), and others. For a complete list, see the National Institutes of Health website.

**Personal Representative is defined by the U.S. Department of Health and Human Services as a person with legal authority to make healthcare decisions on behalf of the individual, either a Healthcare Power of Attorney, General Power of Attorney or someone appointed by the court as legal guardian. Power of Attorney for Healthcare is part of California's Advanced Directive Form.

***See California Department of Public Health FAQ on Informed Consent. See also Disability Rights California and National Center for Youth Law.

As I mentioned in my prior blog, cases involving personal injury, medical malpractice and elder abuse often require a look at the medical record or patient's chart to determine what the legal claims may be. Lawyers are interested in looking at the records from the facility or physician's office where the incident occurred, but may also need records from other hospitals or physicians who provided care in order to get a sense of how you or your family member's health was before and after the incident. Therefore, this week, my blog focuses on the step-by-step process of obtaining you or your family member's chart.

Most people do not realize that they have a right to obtain a copy of their medical record or chart for a nominal copying fee. If the records are electronic, most facilities will print them for free, but if only some of the records are electronic, this option is not that helpful.

Keep in mind, hospitals and nursing homes do not have to provide records on the spot, meaning they may ask you to visit or mail a letter to a "Medical Records Department" in order to sign a consent form for release of medical information. These offices often have limited daily hours.

Step 1. If you are requesting medical records for yourself, you must make a formal written request via letter or visit the office in person to fill out a form. Go to step 3 to see a sample letter.

Step 2. If you are requesting medical records for someone for whom you have Power of Attorney, you must make a formal written request in a letter to each facility where your family member was a patient and to each treating physicians' office. You must attach a current, legible copy of the Durable Power of Attorney for Healthcare. You may mail the letter or drop it off in person.

Continue reading "California "Client's Corner" Blog - How to Obtain Medical Records " »