Nine people have been arrested after an investigation by the state attorney general’s office into Medford Multicare Center, a nursing home located on Long Island, according to an NBC New York article. Kethlie Joseph, an employee of Medford, was charged with criminally negligent homicide in the death of 72-year-old Aurelia Rios, a former patient of the nursing home. Ms. Rios died after becoming disconnected from her ventilator. Aides neglected to respond to an alarm that sounded every 15 seconds for over two hours.
Six other employees, including the administrator, David Fielding, have been charged with participating in the cover up of the death. New York Attorney General Eric Schneiderman released a 58-page civil complaint stating there had been a “history of neglect of Medford’s most vulnerable residents.” Two additional employees have been charged with falsifying documents regarding injuries to other patients at Medford.
Falsifying records and covering up incidents are recurring problems in nursing homes. Many times these incidents go undiscovered. In a previous blog post, I mentioned the state investigation into Northwoods Rehabilitation Facility in upstate New York. These investigations are a step in the right direction, but more needs to be done to protect the rights of loved ones in nursing homes. If you believe a loved one has been the victim of abuse or neglect, contact a lawyer immediately.
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.
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!”
As stated in a previous blog of mine dated March 5, 1013, 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.
A nursing home in Hastings, New York was recently fined $12,000.00 to settle charges that staff members failed to intervene when a resident suffered a heart attack in 2011. While the resident did not have a do-not-resuscitate order, the staff believed the patient did have one, leading to inaction on the part of the staff at Andrus.
The article further states that the Long Term Care Community Coalition released data regarding sanctions against 18 New York nursing homes in the first quarter of 2013; eleven (11) of which were fines and seven (7) corrective actions. One of these nursing homes included Northern Riverview Health Care Center in Haverstraw, NY. Northern Riverview agreed to pay $16,000 in fines to resolve a series of charges including allegations of resident abuse by staff.
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.
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.
The Bloomberg study found that the profit motive is having an adverse affect on the quality of care. The study which was based on U.S. government data based on freedom of information requests indicates that there is a rise in waste, fraud and abuse charges brought by federal authorities as a result of the rise in for profit nursing homes. These findings are consistent with other studies by government agencies, and academic studies. According to Bloomberg news federal prosecutors brought twice the number of criminal cases against nursing homes compared to five years ago. The article cites a report from federal health care inspectors that indicates that the nursing home industry overbills medcare 1.5 billion dollars a year for treatments that patients don’t need or never received.
In March 2010 the New York Attorney General Charged fourteen employees with neglect, abuse, and falsifiying business records at the Northwoods Rehabiliation Center in Troy New York. According to the attorney general a hidden camera was used over a six week period which revealed that the staff “routinely failed to turn and position an immobile patient, failed to administer medications and failed to treat bedsores” Quoting from The Record dated March 31 2010. Nine of the employees were immediately suspended and ten pleaded guilty to charges and four were acquitted at trial. http://www.troyrecord.com/articles/2012/03/03/news/doc4f513edb22737514386191.txt