Staten Island Jury Awards $500,000 in Medical Malpractice Lawsuit

On December 15th, in the Supreme Court of Richmond County, a jury awarded $500,000 to the estate of Salvatore Palmieri, in a verdict against defendant Staten Island University Hospital. Doolan Platt & Setareh, LLP had filed suit against Staten Island University Hospital, after our client, Mr. Palmieri, developed pressure ulcers (also referred to as pressure sores and bedsores) during a hospital stay in 2009 and 2010. In 2009, Mr. Palmieri was admitted to Staten Island University Hospital with an abdominal aortic aneurysm. Following a successful surgery, he was at high risk for developing pressure ulcers. Due to a lack of, and improper, care, Mr. Palmieri did develop pressure ulcers, which grew while he was confined to his bed. These ulcers continued to worsen, until he passed away in 2010.

For patients and residents who are less mobile or immobile, pressure ulcers are a major issue in hospitals and nursing homes. If you or a loved one is at risk for, or has developed, pressure ulcers, make sure the nursing home or hospital staff are implementing measures to prevent or treat them.

Prescription Drug Use in the U.S.

Overmedication is a big issue in long-term care facilities, especially nursing homes. I was sent the following infographic on the state of prescription drug use in the U.S. by Emily Parker of Healthcare Management Degree Guide. The graphic showcases some interesting data pertaining to antibiotics, psychiatric drugs, stimulants and painkillers. While this information doesn’t focus specifically on the nursing home population, it does highlight a trend of increasing prescription drug use throughout the country. Be sure to check the blog over the next couple of weeks for a follow-up post on overmedication in nursing homes.Over-Prescribed America

Medicare Annouces Changes to Nursing Home Rating System

On October 6, 2014, the Centers for Medicare and Medicaid Services (CMS) announced changes to the rating system used for nursing homes. These changes, which will start to be implemented in 2015, include focused survey inspections for a nationwide sample of nursing homes, quarterly electronic reporting of staffing data, the use of additional quality measures, improved requirements for nursing home inspections, and an improved scoring methodology.

CMS hopes that the changes will improve the rating system, leading to better care. The agency writes that the survey inspections, which will start in January, 2015, will “enable better verification of both the staffing and quality measure information that is part of the Five-Star Quality Rating System.”

The press release states the new system for the electronic reporting of staffing data “will increase accuracy and timeliness of data, and allow for the calculation of quality measures for staff turnover, retention, types of staffing, and levels of different types of staffing.” My past post on staffing levels mentioned that the number of staff and the hours of care they provide are important to the quality of care a resident receives. In a New York Times article, Katie Thomas quotes Brian Lee, executive director of Families for Better Care, who said, “If we are able to get better information on staffing levels, the higher the quality is going to be in the long run.”

CMS is not only looking to improve current quality measures, but also adding additional measures to the rating system. Beginning in January, 2015, the rating system with take into account the use of antipsychotic medications by residents. According to Thomas’ article, 20.3 percent of long-term residents of nursing homes are given antipsychotic medications. With the changes, instead of merely being reported, the percentage of residents given these drugs will play a role in each nursing home’s rating. In the future, ratings will also take into account other measures, including claims-based data on re-hospitalization and community discharge rates. These new inclusions, along with a revision of the scoring methodology of the rating system, could produce noticeable changes in nursing home ratings.

I have blogged about issues with the five star rating system in the past. When researching ratings, self-reporting and the manipulation of data have made it difficult to decipher the actual quality of care provided by a nursing home. It seems that CMS has proposed these changes with the goal of addressing these issues in mind. Only time will tell if the new rating system will be effective. However, these changes seem to be a step in the right direction. In addition, CMS demonstrates that they are aware of the issues and are responding to calls for change.

While writing this post, I was wondering why CMS does not have a section of their website dedicated to consumer reviews and ratings. Today, almost everything (movies, restaurants, hotels, etc.) is rated by consumers. Anyone who has access to the internet can rate and review a product in just a few minutes. While residents and family members can file complaints with the New York State Department of Health, if they have issues with a nursing home, to my knowledge, there is no option to rate or comment on the quality of a nursing home on Nursing Home Compare. A cursory Google search revealed some websites that allow individuals to rate and comment on nursing homes, including,, and Consumer reviews should always be taken with a grain of salt, but reviews from individuals with firsthand knowledge of nursing homes can provide a valuable insight into their quality.

Attorney General’s Hidden Camera Investigation Leads to Arrests

Two days ago, Attorney General Eric Schneiderman announced that another hidden camera investigation has resulted in the arrests of nursing home employees. Two certified nurses’ aides, who worked at Erie County Medical Center Skilled Nursing Facility (also known as Terrace View Long Term Care Facility), were arrested and charged with “Falsifying Business Records in the First Degree (class E felony), Endangering the Welfare of an Incompetent or Physically Disabled Person (class A misdemeanor) and Willful Violation of Public Health Laws (unclassified misdemeanor).”

According to video footage, the CNAs, Donna Laury and Nakeia Green, allegedly neglected to follow a 79-year-old resident’s personal care plan, “failing to use two people when performing incontinence care and failing to use a mechanical lift to transfer the resident.” The employees are accused of falsifying documents to cover up their alleged neglect.

Due to Alzheimer’s disease, dementia and the inability to get around on her own, the 79-year-old resident relies on nursing staff to assist with daily activities. Many nursing home residents are in similar situations, where their well-being depends on the care of others. While many residents do receive the care they need, there are many instances, including this one, where caretakers are neglectful or abusive, and do not provide proper care. What is it about the culture of a facility that lends itself to this type of behavior?  And is it evidence of a systemic problem?

Magician, Mat Franco, Wins America’s Got Talent

I am very pleased to learn that a magician, Mat Franco, won America’s Got Talent (a variety talent competition) on September 17, 2014. Magic is something that is best seen live, which makes his win all the more impressive. You may be wondering why I am blogging about a magician on a blog devoted to advocating for the elderly in long-term care facilities. Magic, both performing and watching, is a passion of mine. I have often thought about donating my time to perform in nursing homes. I intend to do that this winter with my wife, Christine, who is a balloon twister. I am curious to find out how those with cognitive deficits react to magic. We could all use a little mystery and wonder in our lives, regardless of age.

When selecting a nursing home, it is important to make sure there are many activities for residents, especially for those with dementia. You want to ensure that your loved one has access to activities in which they can participate and enjoy. A social worker can assist you in determining what activities are best.

Do Staffing Levels Affect Quality of Care?

Back in January of 2006, the Office of the Attorney General released a report titled “Staffing Levels in New York Nursing Home: Important Information for Making Choices.” This report, although dated, has some interesting information regarding nursing home staffing levels in New York State, as well as recommendations to consider when searching for a nursing home.

While there are multiple factors that determine the quality of care in a nursing home, staffing levels are an important one. The number of hours of care provided to a resident and quality of care show “a strong relationship.” In New York State, staffing levels in a nursing home are usually measured in “the average number of hours of daily care that staff members provide each resident of the home.” This measurement is commonly referred to as “hours per resident day,” and is “calculated by adding up the total number of hours worked by the nursing staff and dividing it by the number of resident-days during the reporting period.”

A study done by the Centers for Medicare and Medicaid Services (CMS) found that quality of care declined once staffing levels fell below three separate thresholds. Once the amount of care provided by Registered Nurses (RNs) fell below 0.75 hours per resident day (45 minutes), quality of care declined. If RNs and Licensed Practical Nurses (LPNs) together provided less than 1.3 hours per resident day (1 hour, 18 minutes), the quality of care suffered. In addition, quality of care started to decline when Certified Nursing Assistants (CNAs) provided less than 2.8 hours per resident day (2 hours, 48 minutes). These thresholds mean that any nursing home in New York must provide at least 4 hours and 6 minutes of total nursing care, for the quality of care not to suffer.

The level of care provided to residents also should take into account specific needs of residents. If residents have special needs, they may need additional care and a nursing home may need to employ additional staff. Additional care may be required when residents are pediatric, have suffered traumatic brain injuries, have AIDS, are on ventilators, are on respite care, or have behavioral needs. With any of these cases, additional care is necessary, and nursing homes must ensure that their staff can provide the necessary and proper care.

When considering which nursing home you or a loved one should choose, keep in mind that staffing levels are only numbers. The Office of the Attorney General also recommended prospective residents and their loved ones:

  • Visit the home and look around
  • Learn about the management and staff, including the level of turnover
  • Speak with caregivers
  • Speak with others who have experience with nursing homes, including knowledgeable professionals

These recommendations should be part of any nursing home decision.

What Does a Five-Star Rating Really Mean?

The New York Times placed Medicare’s nursing home rating system front and center in a recent, in depth article, by Katie Thomas, and a recent editorial . In the past, I have written about Medicare’s rating system, pertaining to New York State nursing homes. While The Times article mentions nursing homes in New York, it focuses on nursing homes in California, specifically Rosewood Post-Acute Rehab, which has a five-star rating despite having over 100 consumer complaints and around a dozen lawsuits filed against it.

Nursing home ratings, like Rosewood’s, cannot be taken at face value because much of the data behind them is self-reported and can be changed or misreported by facilities’ employees. The ratings are determined by three criteria, staff levels, quality statistics and health inspections. The Times editorial acknowledges that staff levels and quality statistics “are reported by the nursing homes and accepted at face value by Medicare without verification.” If this data is not authenticated by Medicare, facilities can easily get away with manipulating it for their benefit.

The data from annual health inspections, while not self-reported, can be manipulated, as well. Nursing homes often know when inspections will occur, and increase staff hours during the inspection, only to decrease them once the inspection was complete. The administrator of Medford Multicare Center for Living, a facility in New York, described the inspection period as “our Super Bowl.” The current rating system seems to shift the focus and effort of nursing home staff and administrators to obtaining high ratings, and away from providing consistent, quality care.

In an attempt to rectify part of the problem, the Affordable Care Act “requires Medicare to use payroll data to verify the accuracy of staff levels.” However, the agency, “still working on the verification system,” has not yet put this requirement into effect.

Even though the rating system is imperfect, Katie Thomas writes that, starting this year, Medicare plans to use a comparable system for hospitals, dialysis centers and home-health-care agencies. While the five-star rating system makes it easy for families and loved ones to compare facilities, these recent stories show that the data behind the ratings are not always accurate. When deciding on a nursing home, be sure to look beyond the ratings. They do not always represent the true quality of care.

Doolan Platt & Setareh, LLP Obtain $1.5 Million Dollar Verdict in Overmedication Case

Last Thursday, a jury in Clinton County, New York awarded $1.5 million dollars to the estate of one of our clients, John Solari, who died on August 1, 2011 after being given another patient’s medication. At the time, Mr. Solari was a patient at Champlain Valley Physicians Hospital (CVPH), in Plattsburgh, New York.

On July 29, 2011, a nurse at CVPH, who was filling in for a co-worker who was out sick, gave Mr. Solari controlled-release morphine in his applesauce. This medication was supposed to be given to another patient, but the nurse misidentified Mr. Solari, and gave it to him instead. Mr. Solari died three days later.

My associate Benjamin Decker, Esq. and I brought this case to trial on behalf of Mr. Solari’s daughter, who told the Press Republican, “The issue for me was accountability…Nobody would admit accountability  for my father’s death.” At Doolan Platt & Setareh, we strongly believe in holding those who commit negligence and abuse accountable. As I told Felicia Krieg, the Press Republican reporter, I hope this verdict brings about change.