California Elder Abuse Lawyer Blog

California Pharmacists who are responsible for reviewing whether medications prescribed to nursing home residents are appropriate failed to identify the misuse of antipsychotic medications in 90% of the cases. Worth repeating: 90% of the cases. The New York Times recently published an article which discusses various findings of the California Department of Public Health relating to inappropriate use of dangerous drugs in nursing homes.

Pharmacy reviews are supposed to add an extra layer of safety for the nursing home resident. The goal was to mandate that a pharmacist routinely look at the medication regimens of nursing home patients to identify potential contraindications, unsafe doses, and use of medications which may not be appropriate for the elderly. But in 18 of 32 Bay Area investigations conducted in California between May 2010 and June 2011, consultant pharmacists overlooked or approved these very dangers.

I have written frequently about the dangers of anti-psychotic medications, which are not approved for use in elderly, demented patients and which increase the risk of death in this population. Still, the use of antipsychotics in nursing homes is wide-spread, and it is not uncommon for these drugs to be prescribed to control unwanted behavior, just as yelling, repetitive requests for help, efforts to get out of bed or wandering the halls, or agitation or resistance to efforts to provide care.

It is clear, based on these statistics, that the protective function of the consultant pharmacist is not effective in California. Still, the Department of Public Health did not issue citations or fines for these violations. Instead, the nursing homes received a "statement of deficiency" and were asked to submit a plan of correction. This is the equivalent of a slap of the wrist or a "fix-it" ticket, without any meaningful oversight to make sure the problems is, indeed, fixed. Unfortunately, unless there is greater accountability by the nursing homes, doctors, and pharmacists prescribing and reviewing these drugs, the misuse of these drugs is likely to continue.

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..." »

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.

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.

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 " »

A Fair Oaks, California assisted living facility was shut down last week by the state after a family member placed a granny cam and caught some pretty astonishing things on tape. According to news reports, one staffer was caught violently shaking a resident in her wheelchair, and dumping the chair backward. Another clip shows the resident upside down in her wheelchair, crying and alone.

The family of Kyong Hui Duncan, 73, placed a granny cam at her bedside to make sure the home knew someone was watching. The staff was aware of the camera, which was in plain view. It was intended as a deterrent. Unfortunately, it did not prevent abuse, it merely memorialized it. The family became concerned about their matriarch when she suffered mysterious bruises and infections that went untreated. While looking for an alternative living arrangement, Duncan passed away. After her passing, her grandson reviewed the video images and saw the abuse.

"Shocking" does not begin to describe my reaction to this story. I picture my own 89 year old grandmother, helpless, and suffering in this way. I imagine my children, and wonder how I would react if I found them turned upside in their stroller at daycare. As an advocate for the elderly, I know the grief and guilt a family feels when they place their trust in a care home, only to learn that it was violated because staff didn't do their job. Maybe they did not recognize an infection. Maybe they let grandma get dehydrated. But this type of abuse is over the top. More than one staff member would have had to participate in turning someone upside down in a wheel chair, and who knows how many other heard her cries or saw her in this condition, and did not help her. For the family, they thought the camera would provide added protection. In the end, it provided haunting images which the family replays in their mind's eye.

Continue reading "California Elder Abuse Caught on Granny Cam" »

I previously reported on the unprecedented Skilled Healthcare verdict relating to chronic under-staffing in 22 nursing homes over a 6 year period. The jury awarded the members of the class $677,000,000, a figure derived by multiplying a $500 statutory penalty times the number of days each of the 22 facilities were proven to be staffed under the legal minimum multiplied by the number of residents in each home on those days. It was a staggering verdict, one that was hard fought by the attorneys who devoted 6 years to the litigation. Kudos to them for initiating a lawsuit and seeing it through to the end in order to really advance the cause of elderly nursing home residents.

Importantly, in addition to the jury's monetary award, the court also issued an injunction, a court order requiring the Skilled Healthcare company to properly staff their nursing homes according in order to meet the needs of all of the residents they serve. This type of injunction is also unprecedented; it provides for oversight and penalties over the next two years to ensure the corporation follows the law . It will reportedly cost the corporation over $12,000,000 to institute this program.

This verdict, of course, not only affects Skilled Healthcare, but the entire nursing home industry (at least in California, which has the special provision regarding daily statutory penalties for understaffing). It sends the message to nursing home chains that they may pay a huge penalty if they continue to cut corners on staffing to boost profits. Gone are the days of thinking either they won't get caught understaffing or if they do get caught, the penalty ($500) is inconsequential.

Continue reading "California Understaffing Lawsuit Settled for $62.8 Million dollars." »

How does an elderly demented woman get locked in a retirement home walk-in freezer? According to news reports a 94 year old resident of Silverado Senior Living, in Calabasas, California went "missing" and was found in the walk-in freezer. Seriously, how does that happen? These facilities have lots of kitchen staff. Did no one see her wander through? The kitchen is to be off-limits to residents, but according to news reports, the lock to the kitchen was "not working." Why? Did the facility know it was "not working?" If so, why not fix it? Isn't this a basic safety measure? If a child wandered into a school cafeteria and found his or her way into a freezer, wouldn't we have something to say about that? Residents with dementia, like children, lack safety awareness. The freezer is one hazard, but the rest of the kitchen is as well. Hot boiling water on a stove, sharp knives, toxic chemicals, etc.

Silverado is a chain of luxury assisted living facilities which cater to residents with dementia. While assisted living facilities typically house residents who are ambulatory and able to meet some of their own needs, their primary reason for living in this type of environment is for their protection and safety. And residents and their families pay a steep price for a certain level of monitoring and security, somewhere in the neighborhood of $6,000 per month. At that price point, shouldn't we be able to keep the locks working and the resident's safe? Facilities such as Silverado tout that residents are well- supervised, protected, and that safety is a primary function. Silverado features locked and alarmed entrance and exit doors, elaborate closed circuit cameras, and fenced perimeters - all selling points to concerned families willing to pay a premium to ensure their loved one's safety. How is it that a significant danger - a hazardous industrial kitchen is left open and accessible, and a freezer is unlocked and unattended right under the noses of facility management and staff? Families institutionalize their family members for many reasons; their inability to live safely around common household hazards chief among them. Silverado is not reimbursed by Medicare. This national chain is well experienced with issues and concerns that affect demented elders and must deliver on the promises they have made to families and for which they are handsomely remunerated with private dollars.

An 82 year old male who, during a rehabilitative stay following treatment for back spasms, suffered two falls in the middle of the night, one on October 1 and a second fall on October 2. The second fall resulted in a brain injury. He suffered bleeding in the brain which caused pressure, which had to be relieved by surgically boring holes in his skull. He was hospitalized for nearly 6 weeks and spent another 6 weeks recuperating from treatment and complications from the falls at another nursing home, before he was able to return home. He required a feeding tube, had wore diapers, he had to regain strength to walk and care for his own needs.

Nursing homes charged with a responsibility to assess a residents "risk" for falling and then to take reasonable steps to both (1) minimize the risk of falling and (2) minimize injury in the event of a fall. In this case, the patient was undoubtedly a high fall risk, given his back spasms and the use of pain medications. However, the facility failed to assess him as "high" risk. Accordingly, the resident was not provided with a fall-related care plan (a set of documented actions nursing will implement to resolve problems identified by assessment and re-assessment) indicating what safeguards the nursing staff should take to prevent falls and/or to prevent or minimize injury from falls.

In this case, the resident tried to get up to go to the bathroom in the middle of the night when he suffered his first fall. This put the facility on notice that the patient would attempt to get up unassisted. Once on notice, the facility needed to take steps to keep him safe. Such steps might include lowering the bed to the floor, pushing it up against a wall so there is only one side to get in and out of the bed, putting a pad on the floor next to the bed to cushion a patient if they fall, padding the corners of the furniture and other hazards, using siderails while the patient is in the bed to make it difficult to get up unassisted, using pressure pads in the bed that alarm and alert nursing staff when the patient shifts weight in an effort to get out of bed, implementing a frequent toileting schedule (offering assistance to the bathroom or a bedpan every hour or two in the nighttime), use of a bedside commode (so the resident doesn't have to walk very far to the bathroom, particularly in the night). These are just examples of the types of interventions that keep nursing home residents safe. Acceptance of the axiom that "old people fall" is not the norm.

Continue reading "Ventura County Nursing Home Fails to Protect Patient from Multiple Falls and Head Injury " »

In a recent Ventura County lawsuit filed by the Law Offices of Jody C. Moore, APC, Ms. Moore and her legal team take on the issue of wrongful drugging of our elders. The plaintiff is an 81 year old man with dementia who was a resident at Shoreline Care Center. During his stay he was treated with powerful psychiatric medications, including Haldol, to control episodes of aggressive behavior. Medications such as Haldol are intended to treat psychiatric conditions and mental illness, not episodic and combative behavior which often accompanies dementia. In fact, the FDA has issued a black box warning advising physicians that it is not for use with elderly patients suffering primarily from Dementia with psychosis. A "black box" warning states that when the medication is used to treat the elderly with dementia-related psychosis, those patients are at an increased risk of heart failure and sudden death.

Despite manufacturer warnings , this type of medication is given in elder care settings to control combative behavior. Unfortunately, one of the side effects of using this type of medication (known as anti-psychotic medication or psychotropic medication) is to induce the very behavior or symptom you were trying to control. Again, according to manufacturer warnings, adverse effects of Haldol include anxiety, restlessness and agitation.

In the recent civil action, the elder patient became even more irritable, combative and agitated after Haldol was administered. Facility staff felt he was a danger to himself or others and called the police who took the man into custody, where he was cleared medically and then taken to a psychiatric facility for evaluation and holding. The elder's authorized representative, his own daughter, was not told her father was taken away by the police, until she arrived at Shoreline Care Center the next day, to find her father was no longer there.

Continue reading "Ventura County Nursing Home Sued for Improper Use of Medications To Control and Calm Patients " »

I have blogged more than once on the issue of liability insurance for nursing home neglect. There is no requirement that nursing homes carry liability insurance, even if they receive state and federal funding. Some nursing homes chose not to carry insurance, hoping that the lack of insurance will keep them from being sued.

My tip for the day: when considering a nursing home or assisted living facility, you should always ask whether they carry liability insurance. This doesn't mean you are litigious or expecting a bad outcome. Instead, you should make the inquiry because responsible business owners carry insurance. If the business owner has made a conscious choice not to carry liability insurance, you should question whether they are being responsible in other aspects of their business.