California Elder Abuse Lawyer Blog

An existing government website has recently expanded to include the patient safety ratings of thousands of U.S. hospitals. This site, Medicare's Hospital Compare features data on surgical complications, infections and potentially avoidable deaths. Sound intriguing? Useful? Consumer-friendly? This is the first step towards government based reductions of Medicare reimbursement of hospitals that don't 'make the grade.' But hold the line and consider the following....

While some information provided on the Medicare website has some usefulness to the average patient; let us examine what this might mean for an individual who suffers from multiple medical co-morbidities and presents a high surgical risk. Such patients are becoming increasingly common today with an aging population that has survived, because of modern medicine, many of the ailments that prior generations succumbed to.

Continue reading "Is Your Hospital Safe? Not so fast, consumers..." »

Please click on this link to find out more about these events, taking place October 25th in Camarillo and Simi Valley.

Please make plans to attend one of these free seminars to learn more about this important issue which affects many seniors.

I read two articles this week relating to physical abuse of nursing home residents by the staff who are charged with protecting them. One story, printed in the Santa Barbara News Press, told the tale of two certified nursing assistants charged with sexual battery and elder abuse while employed at Central Coast Nursing Center in Santa Barbara.

The second story, out of Philadelphia, chronicles how one mother and grandmother, Lois McCallister, was physically abused in a Sunrise Senior Living facility. The family suspected abuse and installed a nanny cam, and caught the abusive acts on tape. This led to the arrests of 3 nursing home workers.

Which begs the question: what is going on behind closed doors? Elders are particularly vulnerable to abuse when they are demented, have limited mobility, and cannot speak for themselves. Over the years, I have represented the families of victims of unspeakable sexual and physical assault. These cases are difficult, to be sure, because the elderly victim cannot credibly explain what happened and witnesses are either "in on it" or too intimidated by the perpetrators to speak against them. It is indeed rare for abuse to be identified, evidence to be gathered, and criminal charges to be filed, holding the perpetrators liable for their crimes.

Continue reading "Arrests Made for Physical and Sexual Abuse of Nursing Home Residents by Care Workers" »

A troubling story ran this week in the Santa Barbara Independent about a man named Edmund Finucane, who has been visiting nursing home residents for over 28 years. The story chronicled how Mr. Finucane would bring comfort to the residents of the nursing home formerly known as Central Coast Nursing Center, before it lost its license to operate in August of this year.

But, Mr. Finucane is no longer welcome in the home, ever since he reported to the California Department of Public Health observations of mistreatment and neglect. He was actually arrested for trespassing, and charged by the district attorney. Only after he stood up for himself, and insisted on a trial (without the help of a lawyer) did the D.A. finally drop the charges on July 29, 2011.

What a sad state of affairs when a man who is acting as a good Samaritan, who volunteers his time to bring some measure of companionship to others, is prevented from continuing his good deeds in an effort to shield the facility's misconduct from the public view. The facility was so poorly run, that on August 25, 2011, the state took away its license due to "serious violations related to quality of care and actual harm to patients." Surely, Mr. Finucane witnessed some of those violations first hand.

Continue reading "No Good Deed..." »

Central Coast Nursing Home, located at 3880 Via Lucero and operated by "Caring Team Inc." lost it license to operate on August 25, 2011. See the report here.

The facility has been plagued with problems for over a decade. Formerly, La Cumbre Senior Living Concepts, and before that Beverly La Cumbre, it became known for putting profits over care when a nurse, Mary Hochman, committed suicide in the surf of Tajiguas Beach, leaving behind a detailed journal and suicide note detailing allegations of abuse at the facility where she worked for eight years. In 2010, the state issued 62 deficiencies, compared to the statewide average of 8.5.

It has a capacity of 189 residents, making it one of the larger nursing homes in Santa Barbara. Compass Health, Inc. now operates the facility.

The Ombudsman in California have authority to receive and investigate serious allegations of neglect and abuse, but cannot share their information without written consent from the victim, even with law enforcement agencies. In fact, facilities are required to send reports of suspected abuse to the ombudsman program, who then has the power to investigate. This puts the ombudsman in the untenable position of knowing about abuse but not being able to report it to any agency who can do something about it.

The primary motive for such strict confidentiality is to ensure that the resident is protected from retaliation by the nursing home if they complain. But the ombudsman reports that three-quarters of residents who complain refuse to release their identities.

That means that the vital services of the unpaid volunteers of the Long Term Care Ombudsman program are handcuffed and that the extent of criminal abuse and neglect in long term care facilities is essentially obscured and under-prosecuted.

Continue reading "California Elder Abuse Report Finds Confidentiality Shackles Ombudsman " »

I previously blogged about the importance of SB 558. California Senate Bill 558 (Sponsor: Simitian) changes the burden of proof from clear and convincing to a preponderance of evidence in elder abuse cases. The nursing home industry lobbied heavily against this bill, and it narrowly passed with the minimum of 21 votes on the Senate Floor on June 1, 2011. It moves next to the Assembly Judiciary Committee. If you wish to express support for the bill, you can do so by writing to members of the Assembly Judiciary Committee.

Helpful tips when facing the discharge of a loved one from the hospital:

Because all of the rules, regulations and differences in levels of care can be confusing and over-whelming to patients and families, I recommend that almost from the moment of admission, to take the time to seek out the discharge planning personnel in your loved one's hospital. This person can be a nurse, a social worker or a 'discharge planner'. Talk to this individual on a daily basis. Keep abreast of your loved one's physical progress with the physicians and discuss changes with the discharge planner. He or she will also have access to your loved one's medical record and will read the physician's daily notes. Seek input and express your concerns, financial and otherwise. Visit facilities suggested by the discharge planner. Interview home care agencies if appropriate.

Finally, ask your discharge planner whether the facility you contemplate choosing is insured. If they don't know, ask the facility you are contemplating whether they carry liability insurance. This is particularly essential when considering a small, home-like RCFE. Responsible operators of elder care facilities carry liability insurance. This is an important and little known piece of information that will assist you in making the very best and most informed choice for your family member.

Posted by: Denise A. Platt, RN, JD with Law Offices of Jody C. Moore, APC

California 'Levels of Care': A Residential Care Facility for the Elderly As an Alternative to Skilled Nursing Facility Care

If the patient is not receiving any skilled services and requires assistance with positioning, feeding, bathing, grooming, dressing, walking, and/or must be in a secured environment related to cognitive impairment, a 'lower level of care' such as a residential care facility for the elderly ('RCFE') often times known as a 'board and care' may be appropriate. It is very important to thoroughly investigate to ensure that the RCFE is capable of providing for an individual's needs such as secured doors and perimeters if required. It is equally important to be sure that an RCFE does not accept a patient whose level of care is too high and/or has medical conditions that are specifically prohibited such as patients who require skilled nursing care, who have serious bedsores, or who are bedridden. There are also many 'restricted' conditions that require on-going professional care from an outside licensed home health care agency if a patient is admitted to an RCFE.

A factor that heavily influences a family's decision regarding appropriate discharge might be financial. Most 'skilled' services are reimbursed by Medicare or Medicare Advantage plans, but 'custodial' services are not. Also, Medi-Cal might reimburse someone for long term custodial care in a nursing home if they qualify financially, but Medi-Cal does not pay for an RCFE. Many times this factor causes elderly persons who require physical assistance or who are suffering from dementia to be confined to a nursing home because Medi-Cal will not pay for custodial care in the RCFE environment.

Posted by: Denise A. Platt, RN, JD with Law Offices of Jody C. Moore, APC

The Role of Discharge Planning

These entries will discuss in three parts the transition of an elder who normally lives at home, maybe with some assistance or in-home caregivers, but then is hospitalized and needs more extensive care after treatment. Let's say, mom was living at home but had knee surgery, or was hospitalized for treatment of pneumonia which left her weakened, or perhaps she had a fall and broke a bone. In today's world, hospitals tend to discharge these types of patients who clearly require further care pretty quickly. Hence the adage, "discharge begins at admission".

A hospital will assign a discharge planner to the case and assess what type of support the patient has in the home. The discharge planner has an obligation to determine whether a discharge to home would be safe for the patient. An elderly person with a significant injury (broken leg) or who had recent surgery would not likely be a candidate to return home if they live alone unless they can afford round the clock care giving to assist with toileting, grooming, transfer and repositioning and meal preparations.

Even if the patient lives with loved ones, their care needs might be too high to return home. For example, many patients leave the hospital requiring additional services that must be provided by professionals like physical and occupational therapies. Perhaps they need dressing changes for surgical or other types of wounds. Perhaps they need IV antibiotic therapy for infection. These are often referred to as 'skilled' services. Other times patients require less complex 'custodial services' which are more assistive type services with activities of daily living such as eating, bathing, dressing and grooming. This type of service is also called 'unskilled' service.

Continue reading "California Nursing Homes and Assisted Living: How Do You Know Which Level of Care is Right? (Part 1 of 3)" »

I was heartened to read this article in our local paper regarding a group seniors in a local mobile home park who look after one another. Called the "Silver Circle", each member of the group is responsible one day a week to call seniors in their park who live alone each night to make sure they are alright. What a fabulous idea. I remember when my grandmother, Ruth, lived at Leisure Village, she and another friend called each other each morning and evening at a time certain. They had an agreement: If the call didn't call, something was wrong. Help would be summoned. This provided a great deal of comfort to my grandmother knowing that if something happened during the night, if she had fallen and became ill and could not get to a phone, she would be discovered within hours if her friend did not receive her scheduled call. The Silver Circle expands on that idea and surely brings the same measure of comfort to this community of elders.

A recent study published in the May issue of the American Journal of Infection Control found the correlation between low staffing levels in a nursing home and failure to follow infection control protocols. It has long been argued in nursing home neglect cases that having sufficient numbers of qualified staff is the most important factor in ensuring good patient outcomes. This study provides further proof of that position. Since infections are the leading cause of death in nursing homes, responsible for nearly 400,000 deaths per year according to a news release relating to this publication, the importance of having sufficient staff and nursing home environment cannot be overstated.

Why would nursing homes fail to provide sufficient staff to meet the needs of that its residents? The plain truth is that because staffing is the number one most expensive line item on any nursing home budget. Increasing staffing makes nursing homes less profitable.

How does low staffing cause breach of infection control protocol? The answer is that nurses and nurse's aides who are well-meaning and (hopefully) properly trained simply do not have enough time to meet the needs of all the residents they are assigned to care for and they are more likely to be hurried and skimp on infection control measures. To illustrate, when providing care to too many residents in an environment of chronic short-staffing, the floor nurses and aids are often put in the position of having to make the uncomfortable choice of letting the patients' call bells ring unanswered or taking a few extra minutes to wash their hands between caring for patients.

Continue reading "California Nursing Homes that Skimp on Staffing Risk Infecting Patients" »

California Senate Bill 558 (Simitian) has passed the Senate Judicial Committee and is slated to go to the Senate Floor on or before May 13. This bill lowers the burden of proof for physical elder abuse act claims from clear and convincing evidence to a preponderance of the evidence. The preponderance standard requires the plaintiff prove it was more likely than not that their loved one was abused or neglected. The clear and convincing standard is not quite as high as a criminal standard (i.e. beyond a reasonable doubt), but requires a jury to be convinced that neglect or abuse occurred.

It seems fundamentally unfair to me that frail, elderly victims, whom the legislature has already deemed worthy of special protections, are subjected to a legal standard which is much higher than other civil litigants who are injured as a result of less egregious conduct, i.e. negligence. Also, it seems fundamentally unfair that this class of litigants actually has to meet a higher burden of proof when seeking elder abuse act remedies for physical abuse and neglect, but that the higher standard for elder financial abuse does not apply. SB 558 makes sense because it makes the legal standard for neglect and abuse cases consistent with the standard for financial abuse standards and other claims for serious personal injury.

When I meet a new client, who is profoundly affected by the injury or death of a loved one in a nursing home, I take the time to explain to them all the procedural hurdles which stand between the victim and justice. The list is mighty long, and while the typical layperson doesn't appreciate the subtle differences between "clear and convincing" and "preponderance" burdens of proof, they do understand that it is harder to obtain a verdict for elder abuse act remedies than a car accident or a slip and fall. I am often asked: "How could that be? Why is an elderly victim, who should have more access to justice because of their particular frailties, not less, subjected to a much higher standard?" I am unable to provide a cogent answer.

Continue reading "California Proposed Elder Abuse Legislation May Lower Burden Of Proof " »

Atypical antipsychotic drugs are approved by the FDA for treatment of mental illness, including schizophrenia and bipolar disease. Side effects include an increased risk of death in the elderly population with a diagnosis of dementia. Under Federal Medicare Guidelines, only drugs being used for medically accepted indications are eligible for reimbursement. Federal Medicare Guidelines also set standards to ensure that nursing home residents are free from unnecessary drugs, such as drugs used in excessive doses or for excessive durations.

With this background in mind, the Office of the Inspector General collected data relating to atypical antipsychotic use in nursing homes during the year 2007 to determine compliance with the guidelines. Click here for the official OIG report.

The study includes the following findings:

Continue reading "Study of Psychotropic Medications in Nursing Homes: Confirms Off-Label Use, Use in Patients With Dementia, and Unnecessary Use " »

Typically, when a family member comes to my office, it is because their loved one has suffered a serious injury or even death under surprising or suspicious circumstances. We are called upon to review clinical charts and records and consult with experts to determine whether anyone did anything wrong and, if so, how egregious was the misconduct. In prior posts, I blogged about the heightened pleading standards associated with an elder abuse claim. This blog expands upon the topic of proving a knowing disregard of someone's health or safety, or providing corporate liability for authorizing or ratifying misconduct, by finding false charting in a medical record.

Fraudulent medical records can be used to show any manner of problems with a facility that elects to "skirt the rules" and offer after-the fact "paperwork compliance" rather than the care the patient needs. Below are some of the ways in which a frauded record may prove your case:

1. Uncovering the fraud might actually reveal the true condition of your loved one, such as when abnormal vital signs have been changed to look normal.
2. A changed medical record might be used to show that a nurse knew a certain fact (like a fall risk factor), but later changed the record to show no risk.
3. Frauded records might also serve to prove that a medical condition requiring attention went unnoticed for an extended period of time, such as when a time or date is altered to make it seem a change in medical condition happened too quickly to intervene, rather than over time.
4. Rote charting, sometimes referred to as "dry-labbing" can be used to show care was documented, but not actually provided, such as the same person documenting 3 shifts per day for 30 days in a row that a patient was turned and repositioned every 2 hours to prevent formation or worsening of bedsores.

Continue reading "How does a Fraudulent Medical Record Help Prove Your Case?" »