The Law

Family of elderly man who died of neglect speaks out about forced arbitration

Evan’s father died with an oozing bedsore, about the size of a fist. He hadn’t had any food or liquid for 4 or 5 days.
Coluccio_Law_Nursing_Home_Neglect_Forced_Arbitration

Evan wanted to file suit against the nursing home for the neglect that caused his father’s death. He concluded that a jury trial couldn’t change what happened to his family: but it would send a message to nursing homes that abuse and neglect will not be tolerated.

The nursing home company informed Evan Press that he had no right to file a lawsuit for the wrongful death of his father.

The contract that they had used to admit his father to the facility had an arbitration clause.

Arbitration clause: you agree to give up your Constitutional right to trial, and instead submit any claims against the company to an arbitrator, who is chosen by the company, and paid by the company.

Now the nursing home is suing Evan Press, for attempting to break the arbitration clause.

Just another way to limit consequences

Nursing home companies that use contracts with arbitration clauses usually require a patient or representative to sign this contract before admittance.

Companies claim that patients aren’t giving up any rights or privileges when they sign these contracts— this is their explanation, as they ask the elderly resident to waive his Constitutional rights.

As arbitration has increasingly replaced court as the forum for dispute resolution, the amount of money recovered by abuse victims and their families has decreased—even as complaints about poor treatment have risen.

– Based on study done by nursing home industry itself

Forced arbitration doesn’t benefit consumers. It’s really expensive: attorney’s fees aren’t covered, and the company can force you to travel to wherever they choose to hold the arbitration, which is often an incredible inconvenience.

Plus, you can’t appeal a decision from a binding arbitration. If you don’t agree with an arbitrator’s decision, there is no next step.

And there is no public record of the arbitration meeting, as there is with a jury trial.

For families like Evan’s, there is limited and unjust recourse for the unnecessary death of a loved one.

 

What’s wrong with Illinois’ plan to prevent nursing home abuse

A new law proposed in Illinois would permit the use of cameras in nursing homes to monitor patient care.

The use of the cameras would be voluntary, although there are questions about obtaining consent from elderly residents, their visitors, and the nursing home staff.

Nursing home safety (if you can afford it)

Patients and their families would have to purchase and set up the equipment themselves, and then monitor the footage.

In this plan, a patient’s safety is contingent upon their ability to finance and install an expensive surveillance system. Many senior citizens in long-term care facilities (which are hugely expensive) can’t afford that.

Additionally, this plan assumes that there are family members who are willing and able to watch hours of video footage on a regular basis.

Who’s in charge here?

Families should be allowed to monitor the care of elderly relatives. “Granny cams” have recorded elder abuse in other cases.

And there’s a good argument that the mere presence of a camera would decrease the risk of nursing home abuse: surveillance in itself changes behavior.

But should the State of Illinois place the burden of ensuring nursing home safety on the patients themselves?

Nursing home abuse and neglect is a big problem. Illinois received a failing grade in a national study released in May 2014. Voluntary surveillance captured and monitored by those who can afford it may help, but overall, this plan does not come close to solving the problem.

Everybody counts: one big problem in death claims involving the elderly

Imagine that you’re driving home from work. Coming up to a red light, you see an elderly man step off the curb at the intersection. The car next to you doesn’t see him, and turns right – directly into him.

You, being a good citizen, call 9-1-1.

The operator tells you that all of the ambulances are busy with more valuable people. You call the police: they won’t come because a young person got in an accident down the street, and well, it’s more important that they tend to him. You take the elderly man to the hospital yourself, but the ER doctor won’t see him, since he’s going to die soon anyhow.

Sounds crazy, right?

A little legal background:

When an elderly person dies as a result of nursing home neglect, their family can file a lawsuit. This is called a “wrongful death” claim.

What most families aren’t prepared for: the claims adjusters and defense attorneys arguing that the death of their parent, grandparent or sibling has little value, since they were going to die soon anyhow.

My response to this is always the same: either everybody counts or nobody counts.

Outside of litigation, no one rates the value of people’s lives by age.

Here, we are talking about the death of an elderly loved one. Someone that we understood had only a short time to live. Someone that we understood was not going to be with us for that much longer.

Regardless of the short time that our loved one may have had with us, when they are wrongfully taken from us, there must be an appropriate accounting for the injury, abuse or neglect that took them too soon.

The life was shortened, regardless of how much or little it may have been shortened.

It may have been just a few more holidays with the family, just one more wedding, just a birthday party. Those of us who have lost a close relative would give a lot for one more day.

We can’t allow lawyers for negligent nursing homes to diminish the value of our memories and experiences with our loved ones.

 

This post was adapted from nursing home abuse attorney Kevin Coluccio’s article Everybody counts: Death of our older clients, originally published in Trial News, February 2014, for the Washington State Association for Justice trial lawyers.

Frontline’s/ProPublica’s Life and Death in Assisted Living

Toward the end of July, Frontline in partnership with ProPublica began airing a series, Life & Death in Assisted Living; its full transcript is now available via ebook. With the increasing numbers of seniors who reside in assisted living facilities, an alarming number of stories of neglect and abuse have surfaced. Frontline investigators delved into case studies, offering insights about problems with this loosely regulated multi-billion dollar industry.

Frontline's series "Life & Death in Assisted Facilities" is running on PBS and also available as an ebook.

Frontline’s series “Life & Death in Assisted Living” is running on PBS and a full transcript is also available as an ebook. assisted living facilities, Frontline/ProPublica (PP) investigated this loosely regulated multi-billion dollar industry.

The series began with a focus on the tragic story of Joan Boice, which I blogged about earlier this spring. Frontline compared and contrasted the Seattle based assisted living facility’s marketing pitch with reality.

For example, “specially trained” staffers weren’t really trained to  care for people with Alzheimer’s and other forms of dementia, a violation of California law. At its best, there was only one nurse to track all of the residents’ health. The turnover of medical professionals was high. In fact, one of them who left wrote Emeritus’ senior executives about the facility’s “ huge shortage of staff” and that the facility was mired in “total dysfunction.”

emerald hills brochure

EMERALD HILLS BROCHURE

Apparently, there were months when a full-time nurse was not even on the facility’s payroll. Residents with incontinence issues were allowed to urinate repeatedly in the same spot in a hallway repeatedly.

But Ms. Boice’s husband and two sons saw only the facility as it was presented, as a respite for their aging mother who suffered from Alzheimer’s. They agreed to pay over $4,625 a month for Joan to receive care as a resident at the Emerald Hills facility and another $2,500/month for her husband.

Less than two weeks after Joan moved in, an ambulance crew found her face-down on the carpet. She had struck her head on the floor with such force that she had bruises on her forehead and cheeks. No one at Emerald Hills, however, knew how Joan had fallen or how long she had been laying on the floor. She had defecated and urinated on herself.

Although Myron, Joan’s husband, was also a resident at the facility, no one informed him about this startling event as Joan was transported to the hospital without any facility employee to accompany her. Joan’s son, Eric, got the call from the hospital later that night.

California law requires assisted living companies to conduct a “pre-admission appraisal” of prospective residents, to ensure they are appropriate candidates for assisted living. However, the assisted living facility never conducted the appraisal of Joan. They failed to consider Joan’s family’s warnings before her move in: They had warned Emerald Hills that Joan shouldn’t sit in a chair without supervision, given her history of losing her balance whenever she would get up. But despite this warning, Joan’s daughter-in-law would visit Joan to find her sitting by herself in a chair without anybody else in the room.

The Frontline investigation exposes the gaps in the law that have allowed assisted living and nursing home facilities like Emeritus’ Emerald Hills to endanger and kill senior citizens like Mrs Boice.

 

President Obama Signs Bipartisan Medicare Law

Just a few days ago, President Obama signed H.R. 1845 (112th), the bipartisan Strengthening Medicare and Repaying Taxpayers (SMART) Act, which was introduced by Reps. Tim Murphy (R-PA) and Ron Kind (D-WI) in the House and Sens. Ron Wyden (D-OR), Rob Portman (R-OH), Ben Nelson (D-NE) and Richard Burr (R-NC) in the Senate.

The legislation was a bipartisan solution to streamline the Medicare Secondary Payer (MSP) system, to ensure that seniors and persons with disabilities get timely assistance and taxpayers are repaid millions of dollars every year.

The SMART Act is seen as a victory for senior advocates.

We will see how effective SMART is, as the Centers for Medicare and Medicaid Services (CMS) must still work to eliminate confusion and uncertainty by providing clear, efficient and definitive information to seniors.

Medicare Secondary Payer (MSP):

– The MSP process ensures Medicare is reimbursed for medical bills that are the responsibility of another party – such as an insurer or negligent party.

– A senior or person with disabilities who has been injured, and later obtains recourse through the legal system, often cannot access their settlement until Medicare is reimbursed for all medical cost

– The current MSP system is inefficient and slow to return dollars to the Medicare Trust Fund, which is funded by tax payer money

– It can take years for the Centers for Medicare and Medicaid Services (CMS) to report reimbursement amounts to beneficiaries and CMS can seek multiple reimbursement amounts over time, providing further delay and uncertainty

The SMART Act will:

  • Require CMS to maintain a secure web portal to access claims and reimbursement amounts in a timely fashion.

CMS must upload care payments they disperse within 15 days with the required information about the payment.

  • Streamline the process of obtaining reimbursement amounts.
  • Medicare beneficiaries must notify CMS they are anticipating a settlement no more than 120 days beforehand.
  • CMS then has 65 days to ensure the web portal is up-to-date, but may request an additional 30 days, if needed
  • Reimbursement amounts are reliable if downloaded from the web portal within three days of settlement.
  • Provide a process and timeline for discrepancies and appeals.

Medicare beneficiaries can provide documentation for discrepancies on the web portal to CMS. CMS has 11 days to respond to discrepancies.

– If CMS does not respond in 11 days, the amount calculated by the beneficiary is the correct amount.

– An additional appeal process must be established by CMS for reimbursements it attempts to collect from insurance plans.

– Create a threshold for collecting any payment amounts by CMS that are below the cost it incurs to collect an average claim.

– Readjust the penalty for reporting errors by insurers based on the violation.

– Ensure greater privacy for beneficiaries by no longer requiring use of full social security or health id claim numbers.

– Create a three year limit for CMS to seek any repayments beginning from when they were informed of an anticipated settlement.

!assisted-suicideAttorneys such as Margaret Dore in Seattle assert that Washington and Oregon laws that allow assisted suicide is a factor for increasing elder abuse. Ms. Dore explains that the Oregon and Washington assisted suicide acts have a formal application process. The acts allow an heir, who will benefit from the patient’s death, to play a large role in this process.

Once the lethal dose is issued by the pharmacy, no mechanism for oversight exists. That means that no one needs to witness the death. Without disinterested witnesses, Ms. Dore asserts, “[T]he opportunity is created for an heir, or for another person who will benefit from the patient’s death, to administer the lethal dose to the patient without his consent. One method would be by injection when the patient is sleeping. The drugs used in Oregon and Washington are water soluble and therefore injectable. If the patient woke up and struggled, who would know?”

In Washington and Oregon, the state health departments are required to collect some basic information for its annual reports. According to these reports, users of assisted-suicide are for the vast majority white and well-educated. Many have private insurance. Most are age 65 and older. People that fall into this demographic are seniors with money, which we have seen are commonly targeted and at a higher risk of financial abuse.

The forms used to collect the statistical information do not ask about abuse. Moreover, not even law enforcement is allowed to access information about a particular case. Alicia Parkman a mortality research analyst at the Center for Health Statistics, Oregon Health Authority, wrote to Ms. Dore: “We have been contacted by law enforcement and legal representatives in the past, but have not provided identifying information of any type.“

Resident’s Death Shuts Down Northwest Nursing Home

Doris Dorsey, a resident of John Day Nursing Home (near Portland, OR) died in October 2011. Family of Ms. Dorsey believe that the death is the result of two caregiver’s abuse and neglect, claiming that Tom Houpt and Vanessa Holmstrom withheld food from Doris and tortured her.

Two Caregivers at Portland Nursing Home Charged with Manslaughter & Criminal Treatment

These two caregivers of Ms. Dorsey now face charges of manslaughter and criminal mistreatment. In the meantime, Oregon’s Department of Human Services is shutting down John Day, helping relocate its residents.

Apparently, the State had received other complaints about John Day.

According to the State, the facility failed to comply with state requirements that called for the facility registered nurse to attend training, to have at least two caregivers on duty for each shift and to meet other standards. Their failure to comply “placed residents at harm and risk for serious harm,” the Aug. 30 letter states.

 

Oregon Senate Approves Bill To Curb Elder Abuse

Yesterday, the Oregon Senate approved House Bill 4084, which supporters sayOR Detective.jpg will beef up the ability of law enforcement to protect vulnerable seniors from financial and physical abuse.  

The bill is modeled on legislation protecting children from abuse. It’s much harder under current law to step in with seniors and seek their financial and medical records that could provide evidence of potential abuse.  

As The Oregonian’s Rebecca Woolington wrote last month, the proposal allows law enforcement to gain access “to records that belong to elderly victims without them — or a caregiver  — signing a waiver, if investigators believe abuse is occurring.” That way, authorities can access records in a much speedier 

National Phone Lines Established for General Finance, Medical & Financial Abuse Advice

As of Nov. 10th, a  new national hotline for seniors and adult children of the elderly is available to deal with one of America’s biggest fraud problems: The estimated 1 out of every 5 citizens over the age of 65 who are victimized by a financial swindle/fraud. Of particular concern are seniors with mild cognitive impairment (MCI) who can perform most daily functions, but have trouble or become confused when it comes to managing their finances.! Elder phone line.jpg

In collaboration with the National Adult Protective Services Association (NAPSA), the Financial Planning Association (FPA), and Baylor College of Medicine, the Investor Protection Trust (IPT) and Investor Protection Institute (IPI) are making available three separate call-in lines – covering general finance, medical, and financial abuse questions — from 9:00 a.m. to 6:00 p.m. EST on Thursday, November 10, 2011. (See call-in details below.) Kiplinger’s Personal Finance is also a partner in the November 10th hotline project.

The toll-free hotlines will address questions and offer free advice in the following key areas:

General Finance Questions 888-227-1776. Callers are encouraged to dial into this number to speak with an expert from the Financial Planning Association about their family financial security. Callers will get answers to general financial questions, help identifying financial professionals that put your interests first and learn how to protect themselves and their loved ones from financial fraud. FPA professionals can also help initiate a conversation about money with adult children of older parents in order to help prevent elder investment fraud and financial exploitation.

Medical Questions 888-303-0430. Callers to this number can get advice from health care professionals about medical issues such as mild cognitive impairment that can impact an older person’s ability to make wise and safe financial decisions and can increase their vulnerability to elder financial abuse and exploitation. The health care professionals can help callers recognize the warning signs of vulnerability to financial abuse in themselves or loved ones and suggest referral routes for further medical screening.

Financial Abuse Questions 888-303-3297. Callers to this number will speak with an adult protective services (APS) professional about elder financial abuse and strategies for keeping themselves or older loved ones independent. Callers can get information on how to recognize the most common ways that older adults are financially exploited and methods for preventing elder financial abuse. APS professionals will also help callers take the proper steps if they suspect that a loved one is currently being financially abused or exploited.

New Elder Abuse Justice Center in Vancouver, WA

A new elder abuse justice center was unveiled in Vancouver, WA earlier this week. Its set-up is moodeled after existing specialty centers, such as the Children’s Justice Center and the Domestic Violence Prosecution Center.Clark Co Elder Abuse Justice Center.jpg

Typically, Clark County, Washington has dealt with case of financial exploitation of elders as general felonies or like other theft or abuse cases. With a specialty center for elder abuse crimes now in place, the hope is to streamline the process in prosecuting them by having all the players under one roof, Clark County Prosecutor Tony Golik explained.

Three DSHS adult protection services workers along with detectives and a prosecutor will work out of the new justice center.

According to the adult protection services, there were 880 cases of elder abuse in 2009 (the most recent statistics), a large majority of those were unreported.

There are currently 113 pending elder abuse cases at the prosecutor’s office, according to Dianna Kretzschmar, the program coordinator.

About Kevin

Kevin Coluccio was recently named one of the Top 10 Super Lawyers in Washington State. He has long history of successful elder abuse/neglect cases and has a stellar reputation for getting results for his injury clients in serious car crashes, pedestrian accidents, trucking accidents, maritime claims, and asbestos injury cases.