California Elder Abuse Lawyer Blog

I blogged a while back about an unprecedented nursing home verdict in California. A Humboldt County Jury awarded over $670,000,000 in damages against Skilled HealthCare for its unlawful understaffing of 22 California Nursing Homes. Not surprisingly, both the corporate chain and nursing home groups have called the verdict appalling and unjustifiable. Let's be clear. There were 32,000 plaintiffs in the class of victims. The scheme of understaffing involved 22 nursing homes and the penalty assessed was $500 per day per plaintiff for each day the facility was understaffed. If Skilled HealthCare had complied with the law by providing the state mandated minimum nursing hours, it would not have been subjected to this penalty.

Predictably, Skilled HealthCare claims the award cannot be justified, for a variety of reasons. Most recently, they claimed the verdict was tainted by juror misconduct. In a motion to declare a mistrial, Skilled HealthCare claimed that one of the jurors answered questions falsely claiming she had specific knowledge of one of the plaintiffs and that she failed to disclose her involvement and work at the Coroner's office. Then, Skilled HealthCare claimed this biased juror influenced the other jurors to make such a large award. In response, the plaintiffs' attorneys filed declarations of the accused biased juror, and other jury members, which demonstrated the juror properly disclosed her work at the coroner's office, and that she did not know one of the plaintiffs. The judge found there was no juror misconduct and denied the motion.

Continue reading "California Nursing Home Verdict Will Stand: Motion for Mistrial Denied" »

Ventura County social workers developed an assessment tool aimed at ensuring elders get necessary medical care. A federal grant of $654,000 will fund the project, sending medical specialists into the homes of elders or disabled adults who neglect their own needs for shelter, nutrition and healthcare in the face of deteriorating conditions or chronic diseases.

Currently, Ventura County social workers make home visits to isolated seniors who may need assistance getting proper nutrition, making and getting to medical appointments, and even paying their bills. But social workers lack ability to render medical care or force the sick to seek medical attention. The program hopes to establish that when an elder is visited at home by a doctor, he or she will be able to take prompt medical intervention in the face of an impending crisis and avoid a catastrophic consequence of self neglect.

Elders and disabled adults are particularly vulnerable to self-neglect due to their age, frailty and medical conditions. They feel isolated and lack resources to get the care they need. Of course, when someone is unable to care for their needs at home, placement in a nursing home is one option. One of the benefits of this study might be that home support services enable an elder to avoid a nursing home. One obvious benefit to avoiding the nursing home (as long as the elder's needs can be safely met at home), is to avoid being set up for abuse and neglect in a facility. It is not uncommon for an elder's condition to deteriorate and go un-noticed in a nursing home, because the volume of patients is high and the number of staff low. Another obvious benefit is that the cost of caring for someone in a nursing home is very high, and often paid for by government assistance (Medi-Cal). If this program can help keep elders who are largely capable of providing for their own needs, but need some help and supervision from time to time, out of a nursing home and in their own homes, it would create a win-win situation.

Valley View Skilled Nursing Center is one of 21 skilled nursing facilities in the State of California operated by Horizon West HealthCare, Inc. On November 28, 2009, 4 daytime certified nursing aides at this Ukiah, CA nursing home decided to slather 7 demented residents with an A&D ointment cream from head to toe to make them "slippery" for their night shift co-workers to handle. On Tuesday, Criminal charges were brought against 6 former employees (4 for actually applying the ointment and 2 for knowing about it but failing to report the abuse) for misdemeanor injury to an elder, battery, and conspiracy have also been filed by Mendocino County District Attoney's office. In April, the facility was issued a Class B citation and fined $1,000 for failing to treat residents with dignity and respect, and for causing mental and physical distress.

As part of the larger health care reform in our country, President Obama signed into law on March 23, 2010 the Patient Protection and Affordable Care Act (PPACA) which contains provisions for Nursing Home Transparency and Improvement. In a series of posts, I will discuss some of the provisions which affect nursing home care.

This is part 3 in a 5 part series

Part 3 - Staffing

In California, nursing homes are required to provide a minimum of 3.2 Nursing Hours Per Patient Per Day (NHPPD). And nursing home operators are constantly making these calculations. By taking the total hours worked by direct caregivers (RNs, LVNs, CNAs providing hands on care) for a 24 hour period and dividing by the number of residents in the nursing home for that same 24 hour period (referred to as the census), the NHPPD can be calculated. However, these figures are not publicly available.

California nursing homes are required to post in a public place in each facility a similar calculation which is comprised of the number of direct care staff working each shift multiplied by 8 hours (on the assumption each person works an 8 hour shift) and divided by the census. This gives an approximation of the NHPPD, but does not take into account caregivers who work less than (or more than) the 8 hour shift, caregivers who call in sick, RNs who are not providing direct care but rather performing administrative functions, and it is often filled out by rote based upon a monthly or daily schedule. In short, it is not a reliable indicator of staffing. Further, nursing homes don't often keep these records over time so if litigation ensues and a request is made for staffing information, said request is often responded to by saying the facility does not routinely keep that type of information.

So, what does the Nursing Home Transparency and Improvement provision require as it relates to staffing? Nursing homes must submit direct care staffing information to HHS based on payroll data in a uniform format. The information must specify the "category of work" such as whether the employee worked as an RN, LVN, CNA, therapist, or other medical personnel. The provisions also require submission of resident census and information relating to employee turnover and tenure.

Continue reading "California Nursing Home Information Will be More Transparent Under New Law (Part 3 of 5)" »