New Mexico Injury Attorney Blog

A recent verdict against a nursing home corporation in West Virginia has stirred a renewed push for tort reform and limits on medical malpractice awards. A West Virginia jury awarded over $90 million to the family of a patient that died within 3 weeks of admission to the facility. Rather than outrage at the continuing and pervasive neglect of our parents and grandparents in nursing homes, corporate America through the guise of citizen groups have used the verdict as a call for further restrictions on the rights of injured patients to recover for injuries suffered at the hands of profit driven policies that inevitably lead to tragedy each and every day throughout the country.

The facts of the West Virginia case are not dissimilar to countless other cases of nursing home abuse and neglect. The 87 year old patient was placed in the care of the Manor Care Heartland facility. It was to be a short-term stay as the family awaited admission to another facility. It was argued and accepted by the jury that nursing home staff immediately confined the patient to a wheelchair despite her ability to walk. This is not uncommon for reasons that became obvious to the jury.

Testimony of the facility's staff showed that the facility was severely understaffed. It was shown that it was impossible to care for the number of patients adequately at the staffing levels that existed at the facility. What's the solution to a short-handed staff? Immobilize the patients. This is done in nursing homes throughout the country in a variety of forms. Often, the patient is simply confined to a wheelchair. Other times, with less compliant patients, the facilities will resort to medication to keep the patients immobile. This practice of chemical restraints comes in many forms, some subtle, some not.

Unfortunately, an immobilized patient will suffer all varieties of health related issues related to the lack of mobility. Worst, as here, an immobile patient seemingly content in his or her resting state become invisible to the overwhelmed staff. As the saying goes, the squeaky wheel gets the grease. When the patient does not make a peep, and the facilities are understaffed in order to enhance profits, the inevitable result is neglect. In the West Virginia case, the neglect was so severe that the patient was denied even basic necessities such as food and water. The result, in her brief 3 week stay which was intended to be temporary, the poor woman died of gross neglect.

Immediately, the cries went out from all variety of corporate driven groups with deceptive names suggesting citizen outrage for the reform of the jury system. Naturally, corporations want to limit their financial responsibility for their misdeeds. This ranges from product liability, to oil spills, to corporate owned hospitals, to nursing homes and on and on. These cynically named so-called citizens groups argue that the jury system is causing untold damage to the American way. They argue that corporations should be allowed to police themselves. After all, the corporation will suffer enough from the loss of business associated with their negligent ways. Other financial deterrents such as bothersome jury verdicts are completely unnecessary.

It is interesting to look at just the very recent past in the nursing home industry to understand why this is such an insincere, cynical and profit driven position. In fact, even these seemingly astronomical verdicts have little impact on industry practices since the simple fact remains that less staff means more profits. Last year, a California jury awarded $677 million on a class action nursing home case. Closer to home, a New Mexico jury awarded a $54 million in a nursing home neglect case. That case involved a woman who slowly bled to death in her bed while staff failed to provide even basic care such as periodically checking her vital signs. Then the nursing home created false records and concealed evidence, including the bloody sheets on which she died, in order to cover up the wrongful death.

Naturally, concerned citizen groups around the country flocked in each of the cases to the defense of the nursing homes right to behave negligently while maintaining profits. After all, what citizen wouldn't value the profits of nursing home corporations and their insurance carriers more than the well-being and care of elder family members and loved ones? Despite the minor inconvenience to patients associated with gross neglect I know that I sleep better knowing that nursing home companies are maintaining the bottom line. I for one would not want the health and well-being of my family to in any way intrude on those profits. As a "concerned citizen," that would be un-American.

Collins & Collins, P.C.
Albuquerque Attorneys

Nursing homes are big business. With big business comes big profits. To maximize these profits, it seems that nursing home companies will find every possible opportunity to cut costs. There are many ways to cut costs in a business. Unfortunately, cost cutting is rarely consistent with good nursing home care.

In a nursing home, among the best available options is cutting staff. For profit nursing homes carry staff at much reduced levels compared to non-profit nursing homes. In fact, it is estimated that for profit nursing home have an average of 32% fewer nurses that non-profit nursing homes.

It seems the best way to reduce nursing home staff is to reduce the care necessary for nursing home residents. If the residents are easy to manage, there is much less effort required on the part of the staff. More compliant residents means fewer staff.

As it turns out, the best way to achieve compliance is by drugging the resident. The drugging of nursing home residents for purposes of management has been termed chemical restraint. In other words, if they don't leave their rooms, they can't give a staff much trouble.

Numerous studies have been conducted finding that as high as 80% of patients are placed on psychoactive drugs. In a Florida study, 71% of new patients were placed on psychoactive drugs within 3 months of admission. Most had no prior psychiatric diagnosis prior to admission to the nursing home. In many cases both in Florida and beyond, patients are placed on multiple drugs, some with dangerous interactions.

In at least one nursing home, the so-called psychiatric condition for which the drugs were necessary was complaints about the resident's care. In many cases, the drugs are given without the prescription of a physician. And when the resident refuses the medication, the staff will force the resident to take it.

One might ask, other than the unethical and sometimes forced medication of residents for purposes of maximizing profits, how are the for profit nursing home companies doing otherwise in terms of patient care? Not so good as it turns out. For profit nursing home facilities have almost 50% greater deficiencies in care than do their non-profit counterparts. Many move in and out of compliance, correcting problems long enough to avoid fines only to have the problems quickly resurface.

With the privatization of nursing homes and the increased emphasis on profits, cases of "immediate jeopardy" where violations were likely to cause serious injury or death rose by 22%. Naturally, among the strongest proponents of tort reform is the nursing home industry. The typical argument is that profit motives will increase the standard of care weeding out the bad actors through competitive market forces.

These arguments might carry more weight if the standard of care were not in free fall as opportunistic firms enter the industry with the expectation of higher and higher profits from one year to the next and one patient to the next. There are many good nursing home facilities. There are many that truly care for the welfare of their patients. These are not the ones that need protection from medical malpractice caps. It is the egregious offenders that need those protections and it is those offenders to whom we can least afford to provide them.

Collins & Collins, P.C.
Albuquerque Attorneys

The Eleventh Circuit Court of Appeals has shed some light on a growing and extremely confusing topic, Medicare lien reimbursement in personal injury actions.

The underlying cause of action in Bradley v. Sebelius was a wrongful death action initiated as a result of nursing home negligence. The estate for the deceased was able to settle the claims with the nursing home at insurance policy limits of $52,500. As is often the case with underinsured tortfeasors, the $52,500 policy limits were grossly inadequate to cover the damages associated with the wrongful death.

This did not stop Medicare from asserting a lien for the $38,875.08 in medical benefits paid by Medicare prior to death. Medicare refused to negotiate the lien forcing the estate to take the matter to probate court for an allocation of the settlement funds. Medicare then refused to participate in the probate proceedings standing by its $38,875.08 lien. Based upon principles of equity, the probate court allocated only $787.50 for recovery of medical expense. The amount reflected a pro rata reduction in the lien in proportion to the insurance policy limits to the full value of the wrongful death losses.

Naturally, despite refusing to participate in the proceedings, Medicare refused to accept the allocation insisting on full recovery. Medicare appealed to federal district court obtaining a favorable decision. The Eleventh Circuit Court of Appeals reversed holding Medicare to the probate court decision.

The Court addressed a number of issues. First, the Court addressed the fact that the wrongful death cause of action belonged to the estate, not the deceased. The Court suggested that the surviving children had independent claims for loss of consortium and companionship beyond the claims of the deceased. In essence, the Court suggested that these losses alone exceeded the insurance policy limits leaving nothing for Medicare to attach.

Perhaps more importantly, the Court addressed a growing problem presented by Medicare's approach to lien recovery. Medicare basically refused to participate in the process refusing to negotiate its lien and forcing the estate to probate. It further refused to participate in the probate proceeding. All the while, Medicare stood firm on its lien despite the fact that the total available policy limits and the settlement theron were grossly insufficient to compensate all parties to the claims. Medicare did this through interpretations of its policy manuals.

The Court would not stand for these tactics. First, the court stated that agency policy statements, manuals, and enforcement guidelines are not entitled to the force of law. Next, the Court addressed the obvious breach of public policy in allowing Medicare's tactics. The Court pointed out that the attorney for the estate acted in a sensible and cost effective manner settling the claims at policy limits. The Court recognized Medicare's position would either force cases into litigation or allow tortfeasors such as the negligent nursing home to completely escape liability. In essence, the Court recognized that most attorneys and plaintiffs would be better served simply walking away completely in low policy limit cases where Medicare was involved. The Court put it succinctly stating "Forcing counsel to file a lawsuit would incur additional costs, further diminishing the already paltry sum available for settlement. This flies in the face of judicial and public policy."

This case provides some relief for attorneys and injured persons. It should force Medicare to at least respond to attorneys and plaintiffs in lien negotiation. The consensus to present has been that Medicare simply refuses to participate all the while leaving the possibility of outstanding liens and enormous penalties hanging over both the injured person and the attorney.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

A huge nursing home neglect verdict in California leads to further cries for tort reform. A jury awarded a whopping $677 million verdict against Skilled Healthcare Group, Inc. The personal injury class action lawsuit involved 32,000 patients of Skilled Healthcare.

The suit alleged that the standard of care fell well below standards as a result of Skilled Healthcare's deliberate understaffing of its facilities. It was alleged, and goes without saying, that the staffing decisions were profit driven. The company failed to meet the minimal California standards that fall even below federal standards. California requires only 3.2 daily staff hours per patient where federal regulations require 4.1 staff hours per patient.

As a result of the company's profit driven understaffing of its facilities, its patients were severely neglected with even basic needs such as basic hygiene meeting with significant delays. There are many that now herald the case as not a call for better and more responsible elder healthcare, but for tort reform. It is not the suffering of the patients at the hands of profit driven staffing decisions that upsets these folks. Instead, there are many that see the verdict as new grounds for sheltering corporate profits from callous, cruel and inhumane profit driven decision-making. It makes perfect sense that in today's climate that rather than address the suffering of the 32,000 patients that suffered as a result of Skilled Healthcare's neglect, these folks would demonize the helpless elderly suffering at the hands of Skilled Healthcare and others like them, and of course the lawyers who came to their aid.

Cries for tort reform follow every large verdict involving a corporation or industry. In fact, the moaning begins years in advance in an attempt to sway juries. Trial lawyers and the clients they represent have been under attack for the last 30 years. The cries come from the same direction as the calls for deregulation of the oil industry and gulf drilling in the midst of the BP disaster, the calls for bans on medical malpractice suits when the Institute of Medicine estimates that up to 98,000 patients die each year as a result of medical malpractice, and the arguments against financial industry reform following the near collapse of the world economy directly related to the existing lack of regulations.

Oddly, these arguments often hold sway. Fortunately, the California jury in this case did not buy into the fantasies that drive these arguments. Perhaps the jury recognized the very real and inevitable fact that many of them or their loved ones will at some point be forced, certainly few go willingly, into the care of a nursing home. And once they get there, maybe their verdict will provide them a little protection. Nursing home management companies like Skilled Healthcare if allowed would slash their staffs down to the receptionist and the accountant in the name of corporate profits. Fortunately, there are still attorneys willing to take on these injustices and there are still juries willing to listen despite the relentless attack on trial lawyers over the past 30 years.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Hidden cameras are playing an important role in the investigation of nursing home abuse and neglect cases. Hidden cameras placed by the family of one abused residence revealed severe abuse of a nursing home stroke resident. The Attorney General in New York has implemented a program of hidden cameras in nursing homes for the detection of abuse and neglect in an expansive effort aimed at the protection of nursing home residents.

In Arrellano v. Fillmore Convalescent Center, the family of Maria Arellano placed hidden cameras in her room after the management of the facility refused to investigate abuse and neglect reported by the family for more than a year prior to placing the hidden cameras. The family had noticed bruising on Ms. Arellano's face, arms and legs which could not be explained since Ms. Arellano was bed-ridden. The facility ignored the family and refused to investigate the claims. The family was forced to insert the hidden cameras in the room for the protection of Ms. Arellano. The camera captured very disturbing behavior on the part of a nursing home employee, Monica Garcia, showing her pulling Ms. Arellano by the hair, slapping her, dragging her, and violently bending her wrists, fingers, and neck.

The abuse was so severe that Ms. Garcia was charged criminally and eventually pled to criminal battery. It is unfortunate that hidden cameras were necessary for the protection of Ms. Arrellano yet this was the only way to properly investigate the abuse since the nursing home facility, Fillmore Convalescent, refused to take any action on its own. In the end, a California jury awarded a total of $7.75 million to Ms. Arellano. Of the $7.75 million award, $5 million was awarded for punitive damages while $2.75 million was awarded for compensatory damages.

The use of hidden cameras is a powerful tool for those who have the wherewithal to use this tool to protect against nursing home abuse and neglect. The New York Attorney General has begun using hidden cameras for the investigation and prosecution of abusive nursing home employees. The Attorney General has used hidden cameras for the arrest and prosecution for both abuse of residents as well as what appears to the problematic practice of falsifying records in efforts to cover up abuse and neglect. Attorney General Cuomo stated that the practice was part of ongoing efforts to investigate and prosecute individuals who "shamelessly mistreat Long Island's most vulnerable patients."

It is unfortunate that hidden cameras are necessary for the protection of nursing home residents. These residents are often completely helpless to defend themselves. As in the Arellano case, they are often unable to even report the abuse due to their condition. The resident, the family, and society place their trust in these facilities to protect society's most vulnerable members. The breach of this trust is unacceptable. Abuse and neglect of nursing home residents is a moral outrage. It is should not be tolerated by a resident, a family or society. Attorney General Cuomo's program is a welcome development on the law enforcement front to insure that this misconduct does not go unpunished.

Sadly, though most of these facilities do perform competently and professionally, there remain those that simply have not gotten the message. There are far too many that continue to prey on the weakness of their helpless patients even when the families report abuse and neglect to management. The refusal to implement protections is generally economically driven. Damage awards as in the Arellano case serve to change the economic calculation. Where morality and basic human decency is not enough to change behavior, money often is. Punitive damages serve this important deterrent function.

www.CollinsAttorneys.com

It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

www.CollinsAttorneys.com

An Albuquerque jury delivered a huge $54 million verdict on December 1, 2009 sending a message to ResCare, Inc. that their behavior would not be tolerated.

The case involved a severely mentally disabled man who was raped by of the staff members working at the facility where he lived. Compensatory damages were awarded in the amount of $4.95 million. The remainder of the verdict was for punitive damages against ResCare, Inc. and ResCare New Mexico.

ResCare had denied responsibility and liability throughout the case and throughout the trial. The attorney for the defense argued in closing that sometimes bad things just happen no matter what you do. The jury didn't buy it, and sent a message that such an abrogation of corporate responsibility for the acts of its agents is intolerable.

It is hoped but doubtful that nursing homes and group home management companies will take note. Instead, it is more likely that these entities will continue to dodge responsibility at every turn. Rather than accepting responsibility for their corporate acts and the acts of their agents, that are by the way highly profitable, they will instead deny responsibility or liability from the outset in every case of abuse no matter how atrocious and clear the liability. They will likely continue to shield their true ownership making such filing a lawsuit and getting the right parties named and served a indecipherable labyrinth.

Yes the jury did send ResCare and the industry a message. The real question is was the message received. It is doubtful and the coming days of appeals and continued dodging will provide the answer.

www.CollinsAttorneys.com