California Elder Abuse Lawyer Blog

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.

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?" »

May is National Elder Law Month, according to the National Academy of Elder Law Attorneys, Inc. Attorneys who specialize in providing legal services to seniors are organizing around the country to put on educational seminars, provide pro bono services, and to raise awareness in communities regarding services available to seniors and people with disabilities.

Elder Law, as a descriptor, is best used to describe legal services involving estate planning, wills, trusts, guardianship and capacity issues, special needs trusts, and tax planning. Typically, "elder law" attorneys draft documents and practice in probate court (as opposed to civil court). An elder law attorney does not necessarily have the expertise and resources to litigate an "elder abuse" case.

An Elder Abuse attorney, on the other hand, does not typically handle the transactional work of wills, trusts, and planning. Rather, they have special skills and expertise in handling complex personal injury litigation, with in-depth knowledge of the laws governing nursing homes, doctors, nurses, and other providers of care to the elderly.

Therefore, when you see the term "elder law" attorney, do not assume the attorney has experience actually filing, investigating, and trying an elder abuse case. By the same token, if you know an elder abuse attorney, do not assume they have estate planning know-how. You have to ask the right questions to find the right person for the job.

A study published March 31, 2011 in the New England Journal of Medicine attempts to examine the relationship between Quality of Care Indicators in Nursing Homes and the risk of a lawsuit. The report concluded that nursing homes with more deficiencies and with more serious deficiencies had higher odds of being sued. The odds of being sued were lower in nursing homes with more nurse aide hours per resident days. These relationships make sense and further the goal that advocating for the rights of abused and neglected elders can and will deter misconduct.

However, the authors of the study conclude that the best-performing nursing homes are sued "only marginally less" than the worst-performing nursing homes, and then characterize the relationship between quality indicators and litigation as weak. This leaves the reader with the impression that the delivery of high quality care does NOT reduce the risk of being sued in any substantial way. This is a distressing conclusion, which has caused many to question the motives behind the study and the accuracy of the data.

The authors of the study reviewed data on tort claims brought against 5 of the largest nursing home chains in the United States for the period 1998-2006. During that period, 4,716 claims were filed against 1,465 nursing homes. On average, each nursing home was sued once every two years. A claim is defined as a written demand for compensation for injury. The data revealed that 61 percent of the claims resulted in a payment. The payments averaged $199,794 per claim. The most common injuries were those relating to falls and pressure sores.

Continue reading "Is There a Relationship Between Quality of Care and Negligence Litigation in Nursing Homes?" »

I wanted to share the story, linked below, regarding an amazing symposium put on by the Ventura County Long Term Care Ombudsman and CANHR regarding Toxic Medicine and the inappropriate and unnecessary use of psychotropic medications in nursing homes. The program featured very strong presentations by Tony Chicotel and Christopher Cherney , as well as an administrator from Beatitudes, an Arizona long term care facility known for adopting a "culture of comfort" for patients with advanced dementia.

I found the presentation particularly empowering. Tony impressed the audience with a primer on nursing home regulations relating to informed consent, unnecessary drugs, and battery. He also walked the line by presenting to a packed audience of nursing home providers and Department of Public Health enforcement officials, calling for more stringent enforcement of the clear regulations. Only by enforcing principles of informed consent are we truly honoring each residents' rights.

Christopher related well to the audience, bringing his perspective of nursing home administrator to the group and empathizing with the provider perspective that many residents do have difficult behaviors that must be addressed. But drugs are not the answer. He spoke about the particularly harmful effects of psychotropic medications on the brain. He also issued a challenge and pledged $1,000 of his own money to send Robert Whittaker's book, Anatomy of an Epidemic, to every SNF Medical Director in the state. The use of these medications is enabled by physician orders, and the movement to curb (if not eliminate) these drugs needs to include educating the prescribing physicians.

Continue reading "Ventura County Long Term Care Ombudsman and CANHR Join Forces in Campaign to Stop Drugging Our Elders" »

I read a February 23rd article in The Wall Street Journal regarding seniors and families deciding whether and when to move into assisted living or other elder care environment with great interest. (Link to WSJ here).

As an attorney who advocates for seniors who are placed in facilities, I keep trying to shine the spot light on two troubling issues regarding long term care facilities.

First, there is no requirement under Medicare or Medicaid that nursing homes or assisted living facilities carry liability insurance and, in fact, many homes in California chose to "go bare". This leaves victims of elder abuse without meaningful compensation. But more importantly, the public is totally unaware of this fact. They assume if a person needs insurance to drive a car, surely they need insurance to care for the elderly, but this is just not so. Part of my mission is to educate the public. Families facing the decision where to place their loved ones need to be counseled to ask the question whether the facility is properly insured in case of malpractice or neglect. Responsible business owners, just like responsible drivers, carry insurance.

Second, there are now many "referral agencies" which promise to counsel families on appropriate placement options, but really do nothing to "vet" the quality of care, whether the facility is properly insured, or even to comment on whether the level of care would be appropriate. Rather, these companies are basically selling "leads" without any substantive assessment of the elder's care needs or assessment of proper fit. A prime example in California of an improper placement would be referring an elder with dementia who requires assistance with every daily activity (from getting out of bed, to eating, bathing, dressing, grooming, etc.) to an assisted living facility (as opposed to a nursing home.) This referral is improper because California law prohibits someone with care needs this high from admission to an assisted living facility. Again, the general public is not aware of the limitations on care that assisted living facilities can provide, particularly if they advertise they have "nursing" staff on premises. Careful assessment of care needs must occur prior to placement to ensure a good "fit". Just because a nurse is on staff doesn't mean the facility will render nursing care.

In the new year, patients, families and visitors to California skilled nursing facilities (aka nursing homes, convalescent care centers) will be able to read the federal ratings of the facility utilizing a 1-5 star system. These ratings must be publicly posted and are intended to reflect the quality of care provided by the facility. New requirements also go into effect that inform interested parties how to obtain information about a facility's record from the California state licensing agency - the Department of Public Health ("DPH"). While this system is imperfect in that it may not feature the most current information, it goes a long way to bring to the forefront of the public's consciousness that such surveys and results do exist, and then provides guidance on how to examine a facility's record in greater detail by contacting the DPH.

What seems to be missing from this process is that families need to be aware that the time to avail themselves of this information is prior to their loved one's admission to a skilled nursing facility, rather than during or after the admission process. Requesting a list from hospital discharge planners of all appropriate potential facilities prior to hospital discharge and then making on-site visits, including reviewing the rating system and contacting the DPH will now be critical steps in helping to choose the best possible facility for a loved one.

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.

Nursing home residents have an advocate they may not even know about. California has a Long Term Care Ombudsman Program charged with the responsibility of advocating for the rights of all residents of long term care facilities. There are over 1000 nursing homes in California, so this is no small task. The program is community-supported and staffed largely by volunteers who visit nursing homes, interact with residents, and act as liaisons between residents, family and staff.

In Ventura County, residents who need assistance to improve their quality of life or to trouble shoot a problem may contact the Ventura County Ombudsman Program. Dedicated staff and volunteers have a goal of visiting local skilled nursing facilities once per week and residential care facilities for the elderly (aka assisted living or board and care facilities) once per month.

According to a recent news article on nursing home abuse in Ventura County, in the 10 months ending in May 2010 the Ventura County Ombudsman filed 194 complaints with state agencies for possible violations against 9 county nursing homes which include Maywood Acres Healthcare, Fillmore Convalescent Center, Thousand Oaks Health Care Center, Twin Pines Health Care, Simi Valley Care Center, Camarillo Healthcare Center, Victoria Care Center, Shoreline Care Center, and Country Villa Oxnard Manor Healthcare Center. In 2004, the ombudmsen filed only 10 complaints against these facilities.

Continue reading "Ventura County Ombudsman Program Submit More Complaints of Nursing Home Abuse " »

Since the California Legislature enacted the Medi-Cal Long Term Care Reimbursement Act (AB 1629) in 2004, two major reports have evaluated its impact on the quality of care in nursing homes. The first study was put out in April 1, 2008 by the UCSF Department of Social and Behavioral Sciences.

According to these authors, the aim of the Act was to both improve access to homes for Medi-Cal recipients, and to assure high quality of care in nursing homes by increasing staffing and fostering compliance with state and federal regulations. Unfortunately, the study indicated that the new reimbursement rate system, which became facility-specific and cost based (rather than a flat rate across the state) did not result in any substantial improvement in quality as measured by complaints, deficiencies, staffing levels, turnover rates, and wage levels between 2004 and 2006. Average staffing levels improved slightly, but remained well below the threshold of minimum staffing levels recommended by experts. 16 % of state nursing homes failed to meet the minimum staffing levels required by state law.

More recently, in April 2010, California Watch published the results of its investigation into the effects of the Act. It revealed that despite an influx of $880 million in additional funding to California nursing homes since 2004, 232 homes cut staff, paid lower wages, or let staffing levels slip below the state-mandated minimum.

So where did the money go? Nursing homes enjoyed the benefits of increased revenues without any accountability to provide improved care or spend more money on staffing. Nursing homes received the increased funding even if they failed to meet the state minimum staffing levels. When revenue increases, but expenditures remain the same, the net effect can be seen in the bottom line. Nursing homes, particularly large nursing home chains, saw an increase in profits.

The Ventura County Star reports that local county nursing homes have seen an increase in profits since the legislature enacted reforms to how nursing homes are reimbursed by Medi-Cal. Referring to the California Watch study, the Thousand Oaks Health Care appears to have benefitted the most in the County from this reform, received approximately $1.13 million more in revenue in 2008 than in 2004. In total, nine local nursing homes including Maywood Acres Healthcare, Fillmore Convalescent Center, Thousand Oaks Health Care Center, Twin Pines Health Care, Simi Valley Care Center, Camarillo Healthcare Center, Victoria Care Center, Shoreline Care Center, and Country Villa Oxnard Manor Healthcare Center received a combined total of almost $5 million in new funding.

While the aim of the Act (to increase access to nursing home care for Medi-Cal recipients and improve quality of care) is worthy, the Act is flawed because of its lack of accountability. It carries with it no penalties or forfeiture of funding for failing to comply with state and federal regulations, including minimum staffing levels. Adequate numbers of staff, as well as well-trained staff, are the biggest factors affecting patient outcomes in a nursing homes setting. A UCSF Study shows that residents face substantial harm and jeopardy in homes without adequate nurse staffing levels. A minimum of 4.1 hours of direct care per resident per day is recommended by experts, but California law only requires a minimum staffing level of 3.2 nursing hours per patient day. AARP and nursing home advocates have referred to the new law as a "blank check", guaranteeing increased profits without mandating staffing or training improvements.