Boston Personal Injury Lawyers Blog

On October 1, 2011, Medicare slashed their reimbursement rates to nursing homes by 11%, which resulted in concerns that jobs would be lost due to declining revenue and thus quality of patient care would suffer. However, 2011 year-end and 4th quarter earning statements among publicly-traded nursing homes were strong and many had better than expected operating results.

Unfortunately, despite rising profits, patient care in most nursing homes is mediocre at best and executives tend to target labor costs as a means to offset any decline in reimbursement rates. So, while investor profits surge, more patients are the victims of neglect and abuse.

Given the amount of money at stake - record annual revenues up 198% in 2011 - executives at nursing homes are going to maintain status quo, or worse, cut patient care even more and turn a greater profit for investors. At present, there is no way to monitor these nursing homes because the corporate structure makes it almost impossible to determine the actual entity responsible for running the facility. This loophole results in no one entity having overall responsibility - and in turn, culpability - for poor patient care.

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The family of Elvira Nunziata was awarded $200 million from a Florida jury against a nursing home that the jury found responsible for her wrongful death. The family, however, will unlikely collect any of the verdict because of the complex corporate structure in place at the nursing home in question. This complicated corporate structure exists in many of the nation's largest nursing homes and renders most judgment proof and unaccountable. This case, and the huge verdict that may go uncollected, has put this issue at the forefront again.

Elvira Nunziata was a 92-year-old patient at a long-term care facility in Florida who had dementia and was in a wheelchair. She was able to pass through a door that was likely left open by employees going outside for a smoke. She toppled down a flight of stairs strapped to her wheelchair and died as a result of her injuries.

Her family brought a wrongful death lawsuit against the nursing home responsible for her care and safety. The attorneys retained by the family to pursue the wrongful death case soon found out that the entity responsible for running the nursing home no longer existed. Trying to trace who would be responsible for paying the judgment has proved nearly impossible.

Frighteningly, this is not a rare occurrence. A review of the 10 largest for-profit nursing home chains in the United States revealed several layers of ownership. One layer might own the building; while another would lease the building, hire staffers and pay the bills. Nursing homes are structured this way in a concerted effort to provide protection from lawsuits. Even the federal regulators who issue the licenses to these nursing homes and Medicare and Medicaid who pay the bills are unable to determine which affiliated companies control what. If regulators pull an operator's license for substandard care, that company could dissolve and an affiliated company could take over.

Why does this matter?

This complex corporate structure is deceptive to families whose loved ones are in nursing homes and holds the entities that run them unaccountable. It not only presents a problem in the collectability of judgments, but also the day-to-day operations of nursing homes. While families may assume that the administrator of a nursing home or the local owner is making the decisions regarding staff and supplies that is not always the case. These decisions, made solely based on a for-profit scheme, could actually be made by a real estate investor in New York.

Congress must get involved and enact legislation to require transparency in the corporate structure of these facilities. At the very least, this must be done to promote patient safety. To read more on the case involving Elvira Nunziata click here.

Continue reading "Record Nursing Home Verdict Proves Nearly Impossible to Collect" »

The number is staggering and suggests a resounding "yes" to the question, are nursing homes over medicating its residents? A reported 71% of nursing home residents are being treated for mental health issues. While I have no doubt that a certain portion of this percentage is necessary and legitimate treatment, I have to wonder what percentage of that number is for unnecessary and illegitimate reasons; namely, to make difficult residents calm and "cooperative." This is form of deliberate over-medicating is a form of nursing home abuse.

What is even more alarming is that of the 71% of residents receiving mental health treatment, most of them received no such treatment in the months leading up to their admission. Now, of course, there can be several factors for this large increase in mental health treatment and I would suspect that nursing home directors would argue that these residents should have been receiving mental health treatment and only received the proper treatment upon admission. The other more cynical view is that once admitted, nursing home staff finds that residents are much easier to deal with when medicated.

Unfortunately, many nursing homes opt for medication as the mental health treatment of choice over therapy or utilizing behavior changes, sometimes upsetting patients. While there are patients - ie. those with advanced dementia or Alzheimer's disease - that are not candidates for therapy sessions due to their illness, there are many residents that may benefit from this modality.

Residents and family of nursing home residents, if they are unable to make decisions for themselves, have the right to opt out of anti-psychotic medications. While I am not advocating and all out ban on these medications, I do urge that residents and families seriously consider the risks and benefits of taking same, discuss other treatment options with their family physician, and make an informed decision about whether these medications are the right choice of treatment and which nursing home is best for their loved ones.

Continue reading "Are Nursing Homes Over-Medicating Residents?" »

Many people are now aware that most nursing homes request that the resident or resident's representative sign an Arbitration Agreement upon admission to the facility, which provides the only forum within which to resolve any dispute, including personal injury, is by way of arbitration. Often though, the resident is unaware that signing this agreement is voluntary and is not a pre-requisite to admission to the facility. This misconception comes from story after story of administrative agents for these facilities stating the contrary. They tell residents and family members that this agreement must be signed on order for a bed to be secured at the facility. This practice is not only illegal, but it usually is contrary to the language in the Arbitration Agreement.

Because these Arbitration Agreements have come under judicial scrutiny all over the country, they have evolved and have been re-drafted to include language that is usually clear, unambiguous, and sets forth exactly the time frame the resident has to rescind the agreement (usually 30 days). These newly drafted agreements clearly set forth the rights the resident is waiving by signing the agreement - the right to a jury trial and the right to appeal the arbitrator's decision - and set forth that execution of the agreement is not a precondition to admission to the facility. Further, and most important, the agreement sets forth the time period in which the resident has to rescind the contract after signing it. In most agreements, the resident has up to 30 days from the date he or she signed the agreement to rescind it by providing written notice of same to the facility within the prescribed time period.

Since the resident or their family members may be getting wrong information while several documents are thrust in front of them to sign during the admission process, it is important to slow down, review each document before signing, understand what you are signing, and you do not understand a form or agreement, take it with you to have it reviewed by someone you trust or an attorney. If the facility requires that all documents be signed at one time, consider that a red flag that they are trying to include a form or agreement that is not necessarily in your best interests. Be wary and know what you are signing as it may have significant impact on your legal rights should a dispute or claim arise.

Continue reading "Nursing Home Arbitration Agreements - Mandatory or Not?" »

A few years ago, there was a lot of buzz surrounding so-called "Mandatory Arbitration Agreement" that were included in nursing home packages as one of several documents a resident or their designated representative had to sign upon admission. There was not a lot known about these arbitration agreements when they first surfaced. Questions arose regarding their validity, enforceability, and application.

In Massachusetts, there have been at least two decisions that have shed some light on these agreements. In 2007, the Supreme Judicial Court heard arguments in the case of Miller v. Cotter, 448 Mass. 671 (2007) regarding whether an arbitration agreement executed in the context of a resident's admission was unconscionable, which would render the agreement void. While the Supreme Judicial Court held that the arbitration agreement they reviewed was not unconscionable, they did hold that because there is no clear, all-purpose definition of unconscionable, each review of unconscionability would have to be made on a case-by-case basis. The SJC held that deciding factors for finding an arbitration agreement unconscionable would be whether the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party.

In 2008, the Massachusetts Appellate Court heard arguments in the matter of Constantino v. Frechette, 73 Mass. App. Ct. 352 (2008) regarding whether the family of a deceased nursing home resident could maintain a lawsuit against individuals nurses not specifically parties to the contract. The nurses tried to argue that they were intended third party beneficiaries of the contract and should be bound by it. The court held that only those parties that were named in the contract would be covered by the agreement. The court held that the contract could have included language to include agents, servants, and employees of the nursing home and because it did not, the individual employees were not covered by the agreement.

There was some momentum a few years back for Congress to enact legislation to ban these types of agreements in the nursing home setting, but the bills in both the House and the Senate stalled in the "committee stage."

Since not all arbitration agreements are created equal, it is important to consult with a personal injury attorney to determine whether the agreement you or a loved signed would likely be held valid under current Massachusetts case law.

Continue reading "Nursing Home Arbitration Agreements - Here to Stay?" »