I recently heard from a colleague from my days as a Bronx prosecutor that I had lost contact with for many years. I was pleased to learn he was doing well and is in charge of a large division of the New York Attorney General’s office’s Medicaid Fraud Control Unit. We got to talking and I realized that in all the years that I have been handling nursing home cases I have never reported a case to law enforcement that involved neglect and/or altered records. I have had many cases where the aides are charting that they provided care when my client is in the hospital or when someone went back and tried to re-create the record to cover up the neglect. I have really considered how criminal prosecution of these transgressions fit in with my representation of the victim.
As plaintiff lawyers, we must consider how the client’s case would be impacted by the involvement of law enforcement. Will the facility withhold discovery because of a criminal investigation? Will witnesses take “the fifth”? If so, how will that impact a case? I can see it as being helpful if a witness takes the fifth on a civil case. On the other hand, a criminal conviction of individuals who work at or operate the facility would likely be very helpful to you case, including the pursuit of the punitive damages.
You might also consider involving an attorney or the Government in bringing a Qui Tam action if you suspect Medicare or Medicaid fraudulent billing. It is my understanding that a Qui Tam action is one brought by a private individual on behalf of the Government under the false claims act found in the United States Code, Title 31, Section 3729, through 3733 (31 U.S.C. Section 3729-3733). The Government may choose the join the action once notified. If there is recovery, the whistleblower can receive 15-30% of the Government’s recovery.
To reach the Attorney General’s Medicaid Fraud Control Unit dial: 1 (800) 771-7755 and press “3” or feel free to ask for my former colleague Thomas O’Hanlon. The link to a form on the Attorney General’s website to report Medicaid Fraud or patient/resident abuse and/or neglect is: http://www.ag.ny.gov/comments-mfcu
A client recently forwarded a New York Times article to me that discusses the hidden dangers of older adults spending too much time in bed when hospitalized. I asked Jeanette Sandor, a well respected former Director of Nursing at a nursing home, to comment on this article as it relates to the elderly in hospitals and long term care facilities. Below is a link to the New York Times article along with Ms. Sandor’s comments.
I really appreciate Dr. Brown’s research. It is so consistent with what I saw as a nurse who worked in nursing homes for 20 years. There are so many elderly who end up in nursing homes due to a diagnosis that rendered them dependent such as Alzheimer’s Disease or a stroke. However, there is also a large group of elderly that end up in nursing homes with the primary diagnosis “Deconditioning”. These individuals have been hospitalized for various reasons and while receiving treatment they experienced an overall decline from immobility. Their functioning had declined. They had become incontinent. They got a bit confused. Now they need a nursing home, hopefully on a short-term basis. Although some regain previous functioning through the restorative therapies they receive in a nursing home, there is a significant group who never regain their mobility and many who suffer other consequences of the decreased functioning such as pressure ulcers, falls and depression. Once these events occurred, the likelihood of returning to previous functioning is reduced even further. Personally, I was recently hospitalized and saw firsthand that while hooked up to intravenous and donning a hospital gown, how minimally I moved each day. Where does one go in the hospital besides walking in the hallway? And as the article suggests, who is going to walk the elderly down that hallway? If the person is blessed to have a visitor who will take on this role they will have a better outcome. Educating loved ones is a critical piece to improving outcomes. And as a society and as healthcare providers, let us not forget those individuals who have no loved ones to look out for them, to take a walk down the hall. Growing up we heard “An Apple a day keeps the doctor away!”. Let’s coin the phrase for hospitalized elderly: “A walk down the hall keeps the nursing home away!”