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Early in the history of this nation, disputes were often resolved in barbaric fashion.  An individual might challenge someone who had grieved him to a duel which could occasionally result in injury or death. In 1804, the Vice President of the United States killed Founding Father Alexander Hamilton in one of these duels after accusing him of slander. But when the Founders drafted the Constitution, they incorporated an essential doctrine of law that would provide a more civilized and fair way of settling such complaints. That method was the jury trial, and every Americans’ right to a trial is enshrined in the Seventh Amendment of United States Constitution. But today that right is being threatened by manipulative practices of corporations who want to play by different rules.

Arbitration agreements are everywhere. You can find them in credit card agreements, insurance policies, or those dreaded privacy policies that pop up when you install software. But one place you may not expect to see them is in admissions paperwork for a nursing home or assisted living facility. These documents typically take the form of a several pages but may be as small as a clause or line in a contract. No matter their size, they can have a profound impact on your ability to seek legal recourse when you have been wronged.

Corporations tend to favor arbitration because it essentially allows them to opt out of the legal system. When they are negligent and cause injury or death, they are not required to answer to a judge or jury in a courtroom. Instead, they are allowed to make their case in front of an arbitrator who often provides results which are much friendlier to corporate parties.

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Too often at the Jehl Law Group we see cases of neglect and abuse of seniors. We hear about loved ones who have had infected wounds, broken bones, and other traumatic injuries. Sadly, clients tell us tales of people left for hours on end unattended, who are found lying in their own excrement by family members who come to visit them at healthcare facilities. Most often we hear about nursing home residents who develop pressure sores or bed sores, which are wounds that develop destroying the skin and underlying tissue when nursing home staff fail to turn or reposition residents with limited ability to move. In such cases, the testimony of a witness describing the wounds or lack of care can be very powerful, but oftentimes a photograph can have even greater impact. However, there are several things to keep in mind when obtaining a photograph to make sure that it is admissible at trial and also helpful in your loved one’s case.

In order for a photograph to be used in court, it has to be properly authenticated, which is a legal term that basically means a judge has to determine that a picture shows what you claim it shows. The court wants to make sure that the photograph is not photo-shopped or a picture of someone or something else. That might sound complicated, but it is actually pretty simple. In order to “properly authenticate” a photo, the person that actually took the picture or someone else that was present when the picture was taken needs to be able to testify that the picture accurately represents what the picture shows. For example, if the picture is of a wound, the person who took the picture or a person who was present when the picture was taken simply needs to testify that the picture accurately depicts the condition of the wound at the time the picture was taken.  In order to do that, it is helpful if the person testifying can answer these questions: when was the picture taken (the more specific the better), where was the picture taken, and does the picture accurately depict the wound?  Thus, it is always best to ask a health care provider to take and provide you with photographs of any wounds.  You should not remove bandages yourself or touch a wound, as this can increase the risk of infection.

Just because something is admissible, does not mean that it will be useful in your loved one’s case. Here are a few things to keep in mind:

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In July, the Centers for Medicare and Medicaid Services (CMS) proposed multiple rule changes applicable to nursing homes that accept funding from Medicare and Medicaid. Today we address the use of psychotropic drugs in nursing homes and the proposed rule changes to protect against their abuse. Psychotropic drugs include a broad range of drug categories, including anti-psychotic, anti-depressant, anti-anxiety, hypnotics, and opioid analgesic. These drugs have very important uses when prescribed correctly, but they also carry dangerous side effects, especially for people suffering from dementia.

Dementia patients frequently experience behavioral and psychological symptoms of dementia (BPSD) including agitation, aggression, cursing and swearing, anxiety, depression, psychosis, and wandering. As you can probably imagine or might have experienced personally, these symptoms make it more difficult to care for someone, but they can oftentimes be prevented or managed without the use of medication. However, these alternative approaches take time, effort, and patience. As a result, we often see these drugs overused in nursing home cases that we handle at Jehl Law Group.  Particularly, facilities that are under staffed or short staffed may use these drugs in excess as a way to chemically restrain residents.

These drugs carry serious side effects, especially for seniors. In particular, anti-psychotics can be dangerous if not FDA-approved “for the treatment of dementia-related psychosis.” It has been further warned by the FDA that these drugs can place dementia patients at “an increased risk of death.”[1] Not all the side effects are that serious, but most of the drugs carry risk of sedation (which is why they are used as chemical restraints), dizziness, and increased confusion. These side effects greatly increase the likelihood of falls, which oftentimes result in fractures and injuries that can be deadly to seniors. There are numerous other side effects associated with each specific psychotropic drug.

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In July, the Centers for Medicare and Medicaid Services (CMS) proposed rule changes that would improve the quality of life, care, and services in nursing home facilities that receive funding from Medicare and Medicaid. In an effort to protect residents and keep them safe, the Department of Health and Human Services is aiming to impose rules to protect seniors from abuse, mistreatment, neglect, and fraud. Over the next couple of weeks, the Jehl Law Group will be diving into some of the specifics of the possible rule changes so that you can be more informed as you consider moving your loved ones into a nursing home.

Let’s start by addressing the proposed rule changes regarding arbitration agreements (also known as alternative dispute resolution agreements). In the simplest terms, these agreements state that residents give up their right to a jury trial even if they are injured or die due to the nursing home’s negligent care. Oftentimes, nursing homes put these agreements in their admission paperwork, and residents or their representatives simply sign them without realizing that they are giving up their right to sue in court. The proposed changes try to address this issue by requiring nursing homes to explain what an arbitration agreement is “in a form and manner…that the resident understands.” They also state that the agreement “should not be contained within any other agreement or paperwork.”

In some states (including Tennessee), nursing home facilities go beyond hiding these agreements in admission paperwork, and they actually require that residents sign these agreements in order to gain admission. Nursing homes are allowed to take advantage of people who might not have any other options when a loved one is in need of immediate care by saying sign the agreement that takes away your right to sue or find another facility. The proposed changes also explicitly address this issue: “Admission to the facility must not be contingent upon the resident or the resident representative signing a binding arbitration agreement.” Essentially, if the proposed rule changes go into effect, nursing homes will no longer be allowed to force you into signing an arbitration agreement; instead it must “be entered into by the resident voluntarily.”

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Two Signature Healthcare nursing homes in Memphis, Signature Healthcare at St. Peter Villa in Midtown and Signature Healthcare at St. Francis on the campus of St. Francis Hospital on Park Avenue, have been the subject of recent scrutiny by the Tennessee Department of Health.  Thanks to the reporting of WREG in Memphis, the mismanagement and mistreatment of patients at these Memphis nursing homes has been brought to the public’s attention.  Unfortunately, we at the Jehl Law Group have seen a number of cases involving residents who have been neglected at these facilities over the years.

The evidence of the mistreatment of patients that Signature Healthcare has caused is available in public surveys conducted by the State of Tennessee and the Center for Medicare and Medicaid Services.  These surveys provide an essential monitoring of nursing homes and often expose neglect and abuse of residents.  These surveys are essential in gauging how nursing homes may have mistreated their patients and/or misused money received through Medicare and Medicaid.

Due to recent findings by State Surveyors, Signature Healthcare at St. Francis had its payments from Medicare temporarily revoked last week for what was described as mismanagement.  As a result, the facility had to move many of its patients to other facilities.

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Another week and another disturbing practice is revealed about nursing homes taking advantage of their residents. A report from the New York Times found that nursing homes in New York and several other states have been using a legal tactic to take control of their resident’s assets in an attempt to recover for unpaid medical bills when an issue arises with insurance payment. These nursing homes have been filing guardianship petitions that essentially grant them full authority over both the patient and their money. Through the Times’ reporting we are able to glimpse a troubling  practice that often takes place in the shadows of the legal system. Many of these cases are closed to public view because of privacy issues and it is difficult not only to ascertain how common the practice is but to what extent it takes place throughout the United States.

The nursing homes that were the subject of the story appeared to be using the practice in vindictive ways. For example, one resident found herself to be the subject of a guardianship petition after lodging complaints about the nursing home’s treatment. If nursing homes attempt to silence those who would speak up about inadequacies in patient care using such strong-arm tactics there can be little to no accountability for putting patients at risk.

What is most troubling about this practice is that nursing homes are taking advantage of their patient’s infirmness and blatantly taking control of the patients away from their families. When it comes to patients who can no longer make decisions for themselves it is outrageous to see that the wishes of their loved ones may be circumvented in a shortsighted effort to recoup losses for the nursing home. Many of these incidents involve disputes over insurance and could be resolved without sacrificing the legal rights and dignity of the patients by having control of their lives handed over to a corporation.

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A recent survey conducted by the Tennessee Department of Health of Signature Healthcare at St. Peter Villa in Memphis, Tennessee, revealed multiple deficiencies.  The survey, completed on August 27, 2014, concluded that the nursing home neglected to take required precautions for resident care, which resulted in immediate jeopardy to multiple residents.  According to the survey, the facility neglected to perform the Heimlich maneuver when a resident began choking.  This resulted in a finding of immediate jeopardy to the resident who subsequently choked to death.

The survey revealed that the resident had been put on a physician ordered “mechanical soft diet with pureed meat,” due to a swallowing problem.  Interviews conducted by the surveyor revealed that the facility neglected to ensure that the resident received the proper diet.  Surveyors found that the resident received non-pureed meat and was left alone to eat in his room.

In another deficiency cited in the same survey, the surveyors found that the facility failed to properly investigate and report an alleged rape.  Additionally, the survey found that the facility failed to take proper steps to prevent further potential abuse during the investigation.  Federal law requires a long term nursing facility to ensure that all alleged violations of neglect or abuse are reported through established procedures.  The surveyors found that the facility failed to meet this requirement, placing the resident in immediate jeopardy of further potential abuse.

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Disturbing findings were made during a recent survey conducted at Golden Living Center-Union City.  In the survey, completed on September 24, 2014, significant deficiencies in care at the facility were noted. In the survey, it was stated that the facility “neglected to provide emergency resuscitation” for one of the residents at the facility.  According to the survey, the employees then failed to timely report the incident to the administrator and the administrator failed to properly report the incident to the state agency charged with monitoring nursing home care.

The patient that the facility was charged with protecting was “full code,” meaning that life saving measures should have been taken by the staff if he or she was found unresponsive.  Instead, state surveyors found that the staff failed to check the code status for the patient and did not provide CPR as the policy at the facility would have demanded.  In interviews conducted by the surveyor, the nurses who had attended to the patient stated that they had assumed the patient was DNR or “do not resuscitate” and did not even attempt to resuscitate the resident.

It is tragic to think that a facility charged with protecting the most vulnerable can neglect their responsibilities when they are needed most. While many patients in nursing homes are approaching the end of life, they deserve the dignity of life saving measures as much as any healthy and active person.

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Earlier this month, the White House announced executive actions aimed at improving the quality of care at nursing home facilities across the country. Known as the Improving Medicare Post Acute Care Transformation Act of 2014 or IMPACT Act, the actions seek to improve care by strengthening the Five Star Quality Rating System used by Medicare.

The star rating system, which families, doctors, and patients rely on to choose nursing homes, has had its share of scrutiny as of late. A recent report from the New York Times assailed the system as unreliable and inconsistent, claiming that it relied on data submitted directly by the nursing homes with Medicare doing little to confirm that information or ensure that nursing homes or their corporate owners were not enhancing their rating by boosting their reported information.

Given the importance of these ratings and the concerns about their accuracy, it was reassuring to hear that the federal government is taking action to ensure better information is available to families when critical decisions need to be made.

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A recent federal survey conducted at a nursing home in Murfreesboro, Tennessee revealed several areas of issue in the care there.  In a complaint survey dated May 14, 2014, NHC Healthcare, Murfreesboro was cited for a number of deficiencies including:

  • not properly obtaining abuse registry checks for employees,
  • not maintaining an environment to prevent cross-contamination, and
  • failing to properly document medication administration and effectiveness.

All three of these deficiencies could lead to endangerment of residents at the nursing home.  If you or a loved one have experienced medication errors, infections, or have seen signs of abuse or neglect on the part of NHC Healthcare, Murfreesboro or its employees please contact Jehl Law Group, PLLC immediately!

The allegations here are serious.  Any one of these deficiencies could lead to life threatening consequences for the residents at this nursing home.  When nursing homes fail to adequately perform background checks on employees, patients can be put at risk of physical, mental, or sexual abuse by nursing home employees.  Far too often, we have witnessed caretakers causing harm to residents in nursing homes in Tennessee.  It is of the utmost importance to conduct proper background checks so that sexual predators or those who may take financial advantage of the elderly are not put in a position where they can take advantage of those dependent on them for their well-being and care.   We encourage nursing homes to seek out employees who respect the dignity of human life and part of this is ensuring that their employees do not have a history of abuse Continue reading →