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.

Johnson & Johnson to pay $2.2B in U.S. Health Care Fraud Settlement

I was pleased to learn that Johnson & Johnson is being held accountable under the false claims act for promoting three prescriptions drugs (Risperdol, Invega and Natrecord) in way that put the elderly, children and mentally ill at risk. (See article http://www.timesunion.com/default/article/2-Billion-Settlement-Largest-Single-Drug-Civil-4953700.php) I have previously blogged about the misuse and abuse of psychotropic medications in nursing homes and I find the allegations against Johnson & Johnson outrageous.

Johnson & Johnson was accused of paying kickbacks to doctors and pharmacies to recommend and prescribe psychotropic drugs to the elderly in a way that was unsafe.  As federal studies have demonstrated, psychotropic drugs are being overused because nursing homes don’t have sufficient staff to care for certain behaviors that patients exhibit because of dementia.

Criminal charges were brought over Ripserdal sales representatives promoting it to doctors and other prescribers for symptoms such as anxiety, agitation, depression, hostility and confusion despite the drug having only been approved for schizophrenia at the time.  Sales representatives were allegedly offered incentives for the off-label use of these drugs.  It is unclear from the article as to what extent these fines will impact Johnson & Johnson. For example, are these fines just the cost of doing business, or do they exceed the profit earned from wrongfully promoting these drugs?  It is important to note that part of this lawsuit involved criminal charges, but because the corporation entity was the defendant, no individual from the corporation will be held accountable.

The importance of knowing what drugs are being prescribed to a loved one and for what reason cannot be overstated.  It is important to know dosage and also the side effects.

Medicare and Medicaid Fraud

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

 

Trapped in the Hospital Bed

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.

http://newoldage.blogs.nytimes.com/2013/05/30/trapped-in-the-hospital-bed-2/?src=rechp

Comments by Jeanette Sandor:

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!” 

Jeanette

Dementia Standards of Care

I recently discovered the Alzheimer’s Association which has published “Dementia Care Practice Recommendations : Phase 1 and 2 that are applicable to assisted living facilities and nursing homes. Below is a link to their website which includes the details of Phase 1 and Phase 2.  There is an effort to have nursing homes and assisted living facilities subscribe to these care practices.  I would suggest that in a deposition, we ask whether the facility and/or agency follows these care practices and regardless of their answer, I would develop a line of questioning from these “care practices”  since they appear to be the best care practices for dementia residents.

http://www.alz.org/professionals_and_researchers_dementia_care_practice_recommendations.asp

 

NY Post Reports Abuse and Neglect of a Nursing Home Resident

The New York Post has reported that Dr Enrico D’Angelo and Nurse Diana Aduna who were employees of the Goldcrest Care Center, a Bronx nursing home, were arrested in connection with the “grisly” death of an elderly woman in 2010.  As per the article, D’Angelo and Aduna were charged with failing to render care to the nursing home resident.    The daughter of the resident was quoted as stating, “I don’t want this to happen to anyone.  You bring your parents to be taken care of by professionals.  I never thought there was such evil in the world, so close to home.”  See the full article in the link below.

While Federal and New York State Laws and Regulations set out specific, detailed standards for nursing home staff to follow in providing care to residents, unfortunately all too often, we see articles like this in the media.

http://www.nypost.com/p/news/local/bronx/doc_nurse_from_troubled_bx_nursing_HFXxAuEz6GD2sfYWzad9wO

Woman in Assisted Living Facility dies after being denied CPR

There is no legal requirement for licensed nursing staff to perform CPR; however, it is the Standard of Care in New York State among licensed nursing staff.

Authorities are launching a criminal investigation into the death of an 87-year-old woman who was denied CPR at a California independent living home by a woman who identified herself to a 911 dispatcher as a nurse – but the facility now says she isn’t one.

During the call last Tuesday, an unidentified woman called from her cell phone, and asked for paramedics to be sent to help Lorraine Bayless, who collapsed in the dining room of the independent living building in Glenwood Gardens in Bakersfield.  Later, a woman who identified herself as the nurse got on the phone and told dispatcher Tracey Halvorson she was not permitted to do CPR on the woman.

She said one of the home’s policies prevented her from doing CPR, according to an audio recording of the call.  ”In the event of a health emergency at this independent living community, our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives,” Executive Director Toomer said. “That is the protocol we followed.”

The harrowing 7-minute, 16-second call also raised concerns that policies at senior living facilities could prevent staff from intervening in medical emergencies. It prompted calls for legislation Monday to prevent a repeat of what happened at Glenwood Gardens.

“This is a wakeup call,” said Assemblywoman Mariko Yamada, chair of the California Assembly Aging and Long-term Care Committee. “I’m sorry it took a tragedy like this to bring it to our attention.”

In New York State we have the Assisted Living Reform Act (“ALRA”) with corresponding regulations. In reviewing both New York State regulations and ALRA, I was unable to find a requirement that CPR be performed.  There was a proposal submitted by the Department of Health for a licensed registered nurse to be on staff 24 hours a day at assisted/independent living facilities; however that proposal was successfully challenged and there is still no requirement in place.  Had such a regulation been effective, then that staff member would have been in a position to perform CPR.

Below is a link to the article:

http://www.foxnews.com/us/2013/03/05/spokesman-says-woman-who-refused-to-give-cpr-to-dying-87-year-old-wasnt-nurse/

Smart Act / Medicare Liens

On January 10, 2013, President Obama signed into law the Smart Act. The goal of the Smart Act is to improve efficiencies in the Medicare Secondary Payer system (MSP). The link below is an excellent synopsis of the key provisions of the act as outlined by The Garretson Lien Resolution Group. The Federal Government has nine (9) months (October 10, 2013) from the date of enactment to implement the key provisions of the Smart Act.

http://www.garretsongroup.com/client-alerts/smart-act-signed-into-law