$1,498,000 verdict in Essex County

March 10, 2016 in Essex County our firm took a verdict in the amount of $1,448,000 against a defendant Doctor in a medical malpractice case.

Facts: Our client slipped and fell at a supermarket injuring her ankle/foot among other body parts. She came under the care of her PCP and eventually was referred to an orthopedic surgeon, by a chiropractor, for treatment of her injuries. No X-Rays were ordered by the orthopedic surgeon and 10 months later, after our client's foot collapsed, he ordered an MRI, and then he performed a fusion surgery to her foot and ankle. We alleged that the supermarket was negligent for the injuries, and we initiated a lawsuit in Essex County. The surgery performed by the orthopedic surgeon was unsuccessful and our client required an additional 4 surgeries to correct the deficiencies. We amended our complaint to name the orthopedic surgeon as a defendant, as we believed he deviated from the standard of care, resulting in further damages to our client. The Friday before trial, we settled with the supermarket for $225,000.00, and proceeded to trial against the defendant orthopedic surgeon. After a two week trial the jury delivered a verdict in favor of our client for $1,448,000.00.

Reporting Nursing Home Abuse

Abuse of the elderly in long term care facilities such as nursing homes is a serious problem affecting thousands yearly. From 1996-2000, there were over 72,000 complaints of abuse or neglect in nursing homes nationwide according to the national service that logs these reports for the government. Neglect generally means the failure to care for a person which results in pain or harmful after effects. Abuse generally means that intentional pain or harm was caused and can be physical as well as sexual abuse. The Nursing Home Reform Act of 1987 was passed to ensure that residents in nursing homes did not decline in health as a result of the care they received. Part of this act includes the right of a nursing home resident to complain of mistreatment. This ensures that residents are protected, and that those committing these acts will be punished. The right to complain also keeps a higher standard for nursing homes to keep across the nation.

According to the NCCHR, a not-for profit coalition that looks to protect long-term care resident?s rights, the right to complain can mean a few different things. It can mean that the resident has the right to complain directly to staff and administrators in the facility without fear of reprisal or backlash, and that these complaints will be taken seriously with efforts to resolve the problems. It can also mean that the resident of the facility may complain to the ombudsman program. Ombudsman programs exist at the state and federal level and are citizen representatives whose job it is to hear and address complaints. The resident may also complain to the local or state agency which is in charge of licensing and certifying such facilities. Many states also have adult protective services departments, which will take and investigate claims of abuse or neglect. It is also important to note that a resident always has the option of calling the local police or state law enforcement. A useful resource in determining who to report nursing home abuse to is the National Center on Elder Abuse, which part of the U.S. Administration on Aging. Their website can be found at http://www.ncea.aoa.gov/.

If you or someone you know is a victim of abuse or neglect in a nursing home, it is important that you report the allegation to one of the agencies listed above immediately. The longer the abuse goes unreported, the more the pain and suffering is likely to continue. It is important to write everything down, to be specific about people, times, and places, and to keep a copy of the report. When writing down the people involved, some things to think about are who the victim is (including their age and address), the name of the nursing home, the people responsible for the residents care, as well the person who was allegedly responsible for the abuse or neglect. When recording what happened, it is important to identify not only the type of abuse or neglect, but also the extent of the damage or harm done. Times and dates are another detail to consider when making a report. The key here is detail. The more detailed a report, the quicker the problem can be addressed, and hopefully fixed.

After filing a report with one of the many agencies that can help, it is important to follow up on the report. If you are not the victim, but a friend or family member, it is best to find out if the abuse or neglect is no longer happening. Any reports that can be obtained showing what actions were taken against the facility or the nursing home should also be obtained for the victim?s records. Usually these types of reports can be found with whatever state board is in charge of licensing or certifying long-term care facilities.

Remember, the most important aspects of filing complaints are that any further harm can come to a stop, and the more detailed the report, the quicker action may be taken. In cases involving nursing home abuse or neglect, both criminal and civil action may be sought. The person committing the abuse or neglect will likely face criminal charges from the state, but the facilities owners and operators may also face civil penalties for that damage caused to the resident.

Source: National Center on Elder Abuse, Administration on Aging http://www.ncea.aoa.gov/

More can be done to prevent nursing home abuse

Allegations of physical and sexual abuse of nursing home residents frequently are not reported promptly. Local law enforcement officials indicated that they are seldom summoned to nursing homes to immediately investigate allegations of physical or sexual abuse. Some of these officials indicated that they often receive such reports after evidence has been compromised. Although abuse allegations should be reported to state survey agencies immediately, they often are not. The United States General Accounting Office's (USGAO)review of state survey agencies' physical and sexual abuse case files indicated that about 50 percent of the notifications from nursing homes were submitted 2 or more days after the nursing homes learned of the alleged abuse. These delays compromise the quality of available evidence and hinder investigations. In addition, some residents or family members may be reluctant to report abuse for fear of retribution while others may be uncertain about where to report abuse. Although state survey agencies in the three states we visited had designated telephone numbers for reporting abuse, the USGAO found it difficult to identify these numbers in the government and consumer pages of local telephone books for some of the major and mid-size cities in these states. However, they did find a wide variety of other organizations that, by their name, appeared to be able to address abuse complaints, but, in fact, had no authority to do so. Although CMS requires nursing homes to post these numbers, it is not clear that this ensures that residents and family members have access to this information when it is needed. In recognition of the need to better inform residents and family members about abuse reporting, the agency initiated an educational campaign in 1998. The campaign included development of a new poster with removable information cards containing appropriate numbers for reporting abuse. Although a pilot test was conducted, the poster has not been approved for distribution nationwide.

Few allegations of abuse are ultimately prosecuted. The state survey agencies that were visited followed different policies when determining whether to refer allegations of abuse to law enforcement. As a result, law enforcement agencies were sometimes either not apprised of incidents or received referrals only after long delays. When referrals were made, criminal investigations and, thus, prosecutions were sometimes hampered because witnesses to the alleged abuse were unable or unwilling to testify. Delays in investigations, as well as in trials, reduced the likelihood of successful prosecutions because the memory of witnesses often deteriorated. Safeguards to protect residents from potentially abusive individuals are insufficient at both the federal and state level. There is no federal statute requiring criminal background checks of nursing home employees nor does CMS require them. Although the three states that were visited required background checks to screen potential nursing home employees, they do not necessarily include all nursing home employees nor are they always completed before an individual begins working. They also focus on individuals? criminal records within the state where they are seeking employment. Safeguards at the state level are also insufficient. While nursing homes are responsible for protecting residents from abuse, survey agencies in the states that were visited rarely recommended that certain sanctions?such as civil monetary penalties or terminations from federal programs be imposed. Twenty-six homes were cited for deficiencies related to abuse from the 158 case files that were reviewed. The survey agencies recommended a civil monetary penalty for 1 home, while the remaining 25 nursing homes faced less punitive sanctions such as a requirement to develop corrective action plans. State survey agencies also play a role in preventing homes from hiring potentially abusive caregivers through the states' nurse aide registries. These registries, among other things, identify aides that have previously abused residents. A finding of abuse should prevent a home from hiring an aide. However, delays in making these determinations can limit the usefulness of these registries as a protective safeguard. In addition, findings of abuse for several nurse aides could not be found in one state's Web-based registry, compromising its protective value. As a result, aides who the state survey agency had already determined had abused residents could have been hired by unsuspecting nursing homes. Finally, none of the three states that were visited had a safeguard in place?similar to a nurse aide registry?to professionally discipline those nursing home employees who do not need certifications or licenses to perform their duties, such as maintenance or housekeeping personnel.

If you suspect that you, or a loved one is a victim of nursing home abuse then contact us today for a free case evaluation.

Nursing Home Neglect Wrongful Death Lawsuit

A Jefferson County nursing home is being sued under allegations that a preventable fall, which eventually led to death, was a result of the failure of nursing home staff to detect a severe abdominal infection that ruptured when Mary Elizabeth Yancey fell at the facility.

Yancey had been complaining of severe abdominal pain and had obvious signs of the infection, but hospital staff waited for 3 days before taking her to a hospital for treatment. She was immediately admitted and stayed there for treatment for almost a month before eventually dying from septic shock, which was determined to be related to the infection.

The nursing home had been struggling financially, losing more than $4,000,000 annually, and posted a $28 million deficit over the 2003-2008 budget years. Annual taxpayer subsidies were required to keep the nursing home afloat and the allegations are that the nursing home was taking on more patients than it could care for in order to try to turn a profit. They were simply undersized and could not properly take care of, and treat all of their patients.

The allegations suggest that the efforts by the nursing home to fill empty beds and to increase their rate of occupancy led to a lack of care for their patients. As a result Yancey's condition went unnoticed and led to her infection, and eventually death.

The lawsuit was filed by attorneys Perry Shuttlesworth Jr. and Alan Lasseter in the state of South Carolina.

Signs of Nursing Home Abuse

The best way to detect signs of nursing home abuse or neglect is to make frequent visits to the nursing home where your loved one is residing. Remeber, nursing home residents are not always in the right condition, physically or mentally, to communicate their situation to you in an accurate manner.

There are several different kinds of nursing home abuse that you should be aware of. These include physical abuse, Neglect, and verbal or emotional abuse.

Physical abuse includes the following:

• Assaut
• Battery
• Sexual Assault
• Sexual Battery
• Rape
• Unreasonable Physical Restraint
• Prolonged or continual deprivation of food or water
• Giving too much medication
• Not giving needed medication
• Unexplained injuries
• Caretaker cannot adequately explain condition
• Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorized by the physician
• Open wounds, cuts, bruises or welts
• Elder reports of being slapped or mistreated
• Slapping, pushing, shaking, beating
• Forcing an older person to stay in a room

Neglect consists of, but is not limited to:

• Physical neglect: disregard for the necessities of daily living
• Medical neglect: lack of care for existing medical problems
• Failure to prevent dehydration, malnutrition, and bed sores
• Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter
• Unsanitary and unclean conditions
• Infections
• Failure to protect from health and safety hazards
• Poor access to medical services

Possible signs of verbal or emotional abuse may include resident behavior such as:

• Emotionally upset or agitated
• Extremely withdrawn and non-communicative
• Unusual behavior (sucking, biting, rocking)
• Humiliating, insulting, frightening, threatening or ignoring behavior towards family and friends
• Wanting to be isolated from other people

Nursing home abuse is a serious crime. Learn and know the signs, and protect your loved one. Contact us today for a free consultation if you suspect that someone you love is a victim of nursing home abuse. Markman & Cannan are here to help and will fight for your loved one's rights.

Coming Soon

New blogs coming soon! Please check back.