Chicago Nursing Home Abuse Lawyer Blog

Recent developments in the area of filial support law have the potential of affecting how families budget for nursing home costs. Currently, 29 states (not including Illinois) have what are called filial support laws on the books. Filial support laws are put in place in order to require certain family members of an indigent elderly person to provide financial assistance for his or her unpaid care. These laws have various levels of requirements depending upon the state that you are in. A recent law review article by law professor Katherine C. Pearson, which was published in the Spring 2013 edition of the University of Illinois Law School's Elder Law Journal, took an in-depth look at some of the states where these laws are taking a more prominent role in nursing home funding.

One of the cases that Pearson looked at was the Pennsylvania HCRA v. Pittas case. In September of 2007, John Pittas' (who was the appellant) mother was admitted to an HCR facility for skilled nursing care and treatment where she resided and was treated until March of 2008. In March of 2008, Pittas' mother relocated to Greece. A large portion of her bill at the HCR facility went unpaid and, as a result, HCR sued Pittas for $93,000 under the state's filial responsibility law. After a three-day trial, the trial court ruled against Mr. Pittas in the amount of $92,943.41. On appeal, the appellate court affirmed this ruling and refused to consider imposing joint responsibility on his mother's husband or her two other adult children.

In a recent article reacting to this decision in the Southern Illinoisan Business Journal by Richard Habiger, he states that "[w]ithout proper planning by both parents and children, and without legal advice from an experienced elder law attorney, children may very well be on the hook for thousands of dollars of care required by their aging parents." Although there are no filial support laws currently on the Illinois books, there are some experts, like Professor Pearson, who believe that more states may adopt similar laws in the upcoming years. This puts a premium on making sure that families plan for the costs of nursing home care in advance of admitting their loved ones into a long-term care facility.

Professor Pearson concluded her article with this theory on where legislation may be heading "It seems reasonable to conclude that when a nation is both willing and financially able to provide adequate public support to assist poor elders, filial support laws are less important and less frequently used. In the United States, when the federal government was willing to fully fund Medicare and Medicaid for elders' health care and long-term care in nursing homes, federal policies led states to repeal or limit the use of filial support laws to mandate financial support for parents by their adult children. However, as the large demographic cohort of baby boomers ages, thus increasing the likelihood of costly health care and long-term care, there may be heightened interest among the U.S. states in using filial support laws against adult children." Our office encourages you and your family to take the necessary steps to plan for nursing home care costs so that you will not have to worry about the effects of this potentially growing area of law. This may very well include seeking legal counsel for advice on how best to plan for funding, and how current state or federal law could affect your family's liability for the costs of long term care.

If you or someone you love has been injured, neglected, or abused in a nursing home at the hands of nursing home caretakers, please contact Ed Fox & Associates today.

A recent article out of Wisconsin has been making the rounds on a lot of local blogs. Changes in Wisconsin law, which took effect in February 2011, prevent families from using state health investigation records in state civil suits against long-term providers including nursing homes and hospices. It also makes these records inadmissible in criminal cases against health care providers accused of neglecting or abusing patients.

A 32 year-old man, who is brain damaged and paralyzed from the chest down, was living in a group home in Menomonie, WI. In October 2011, he had to be rushed to a local hospital for treatment of a bedsore that had gotten so bad, doctors thought he might be permanently bedridden. A Wisconsin state health department investigation report later found that he had the bedsore for four month before being hospitalized. The facility never reported it to the state or told his family about it. The family is currently suing the facility, seeking damages for negligence, but due to the changes in Wisconsin law, their attorney cannot use state investigation records as evidence in the lawsuit.

Supporters of the bill, which include Wisconsin Governor Scott Walker, argue that this law only has a minimal effect on the use of investigation records. Critics say the law removes a good tool for revealing abuse and neglect because attorney's cannot use state inspection reports to support allegations or impeach a witness. This also has a big effect on injured residents who do not have the capacity to testify about what happened to them.

Around 270 tort reform laws have been implemented in 49 states since 1990. Some, including the one in Wisconsin, can be traced back to the American Legislative Exchange Council (ALEC), which is a group funded by private industry that focuses on pro-business model legislation used mostly by Republican law makers. Supporters of the bill insist that it will help fuel the economy by reducing corporate litigation costs. Brian Hagedorn, Governor Walker's chief legal counsel, said that the law is aimed at jobs, and went on to state "[t]hese changes send a symbolic and substantive message that Wisconsin is open for business." That bears the question, at what cost?

Other proponents of the bill claim that implementation of this law allows healthcare providers to discuss problems more openly "without fearing a (personal injury attorney) is going to come [and read his or her report]." Walker said in an interview that the bill has helped slow the "constant pattern of litigation" that could be seen as a negative by employers.

Judge William Hanrahan, a Dane County (WI) Circuit Court Judge, with 19 years of experience prosecuting crimes against the elderly, expressed concern about the law because it forbids district attorneys and the state Department of Justice from using these records as evidence in criminal cases. He went on to state "I can't imagine if it were a homicide, it would be like saying the police reports couldn't be used."

Laws like this make it harder for attorneys like those at Ed Fox & Associates to do their jobs to the best of their ability in order to protect victims of nursing home negligence and abuse. What is more troubling is that the driving force behind these sorts of laws is stimulating the economy and job growth. There was very little mention of the needs of nursing home and long-term care facility patients by the proponents of this legislation. As was mentioned above, through the work of ALEC (which provides model bills for this type of legislation), 270 similar laws have been implemented across the United States. We have to work hard to make sure that these laws, veiled by good intentions, do not get implemented on a more widespread basis and lead to a lack of justice for those who are victims of neglect or abuse.

If you or someone you love has been injured, neglected or abused in a nursing home at the hands of nursing home caretakers, please contact Ed Fox & Associates today.

In the past, nursing home abuse actions, especially in Chicago, were relatively rare for a variety of reasons, including difficulties in proving causation and the belief that substantial damages were unlikely to be awarded. However, tort litigation has been increasingly utilized to seek redress for these injuries; and substantial verdicts and settlements have been achieved.
Both intentional and unintentional torts can arise in a hospital or nursing home setting. Intentional torts including assault, battery, false imprisonment, and conversion are frequently alleged in nursing home litigation. For example, in Gragg v. Callandra, an Illinois court allowed claims for battery and intentional infliction of emotional distress to be maintained against defendant hospital for disregarding the patient's living will.
Additionally, claims regarding the improper use of physical or chemical restraints also are emerging. In Bryant v. Oakpointe Villa Nursing Centre, a decedent suffered from multi-infarct dementia and diabetes, had suffered several strokes, and required twenty-four-hour-a-day care for all her needs, including locomotion, dressing, eating, toileting, and bathing. Her condition impaired her judgment and reasoning ability and, in turn, caused cerebral atrophy. She had no control over her locomotive skills and was prone to sliding about uncontrollably and, therefore, she was at risk for suffocation by "positional asphyxia." Because she had no control over her locomotive skills, the nursing home's medical director authorized the use of various physical restraints, including bedrails, restraining vests, and wedges and bumpers. The decedent slipped between the rails of her bed and was in large part out of her bed with her lower half of her body on the floor. However, her head and neck were stuck under the bed side rail with her neck wedged in the gap between the rail and the mattress. This prevented her from breathing, which ultimately caused the patient's death. Here, the court upheld the validity of such a claim that the nursing home was liable for the patient's death due to the fact that the death occurred as a result of "positional asphyxiation" while in the facility's care.
Unintentional torts are predominantly claims of negligence in care or supervision such as result in falls or other injuries to residents. Several jurisdictions have imposed tort liability upon nursing homes for injuries sustained by residents as a result of negligent or intentional acts by the facility's employees. A nursing home also may be vicariously liable to a resident who is injured by another resident or by a third party who is not an employee. In addition, several states have created statutory private rights of action, ranging from statutes making explicit a nursing home resident's right to utilize common law remedies, notwithstanding the existence of statutory remedies, to schemes that set out rights and damages available to nursing home residents. The Illinois Nursing Home Care Act also provides for the recovery of attorney fees and costs. Litigants also have relied on consumer protection and related statutes to seek recovery from nursing facilities.

If you or someone you love has been injured, neglected or abused in a nursing home at the hands of nursing home caretakers, please contact Ed Fox & Associates today.

The information in this blog was provided by Elder Law: Advocacy for the Aging 2d, by Allen D. Bogutz, Robert N. Brown, Joan M. Krauskopf, and Karen L. Tokarz.

The short answer to that question is no. When most of us think about Nursing Home Abuse and other similar types of fraud or neglect, we automatically assume the victim is a Senior. Two recent incidents that we came across recently illustrate how that assumption is not always accurate.

In a Southern Indiana City not too far from us in Chicago named Seymour, a 26-year old woman named Kasey Scott plead guilty to Medicaid fraud and neglect of a dependent. Scott, who is a licensed practical nurse, was working for a home respite-care agency when she was hired by a local family to care for their severely disabled 7-year-old son at their home during daytime hours that his parents would be at work. According to the probable cause affidavit, Scott was supposed to follow a care plan which included "providing physical therapy, exercise, interaction, and monitoring the child's vital signs when he experienced seizures." The mother set up a hidden camera to record video during the hours that Scott was to be there due to concerns about the care she was providing. The video showed that on June 5 and 6 of 2011, Scott provided inadequate care which was limited to only feeding, diapering and giving the child medication. The rest of the time, Scott would leave the blind, disabled 7-year old boy on a couch for hours by himself while she would read or watch TV. Scott also falsified notes and stated that she provided care which she did not actually provide which led her employer, Loving Care Agency of Indianapolis, to unknowingly submit false claims to Medicaid for reimbursement of funds that the program paid. Scott will serve one year of her four-year sentence on home detention and the remaining three years on supervised probation.

The second incident is even more troubling. This incident occurred in an Arkansas nursing home/rehabilitation center where a 21-year old female disabled resident told the staff that a man came in and molested her. When police arrived on the scene they tracked down a 42-year old man who claimed that he had visited the nursing home that day, heard the resident call out for help, went to her aid, and called a nurse for her. Police gathered DNA from the man which ended up matching the evidence in the rape kit. The man was charged with the fourth degree felony of gross sexual imposition. The article went on to reveal some startling statistics on abuse in nursing homes: The National Center on Elder Abuse reported that there were roughly 5.9 million cases in 2010 with 58% of these cases relating to neglect. For more up to date statistics on nursing home abuse, you can check out the Center on Elder Abuse's fact sheet which will be attached here.

If you or someone you love has been injured, neglected or abused in a nursing home at the hands of nursing home caretakers, please contact Ed Fox & Associates today.

Illinois Nursing Homes are licensed, regulated, inspected and/or certified by public and private agencies at the state and federal level. Such agencies tasked with Nursing Home regulation include, but are not limited to, the Illinois Department of Public Health (IDPH) and the United States Department of Health and Human Services' Centers for Medicare and Medicaid Services (CMS).

The IDPH monitors nursing home facilities to ensure compliance with mandatory state regulations. In addition, the IDPH, under a cooperative agreement with CMS, is responsible for ensuring that nursing home facilities that accept Medicare and Medicaid in the State of Illinois satisfy federal regulations and certification requirements. The IDPH inspects nursing home facilities and also responds to complaints lodged against any facility. Inspections are conducted to evaluate a nursing home's equipment, staff, policies, procedures and finances to ensure an adequate level of care at each facility. During an inspection, the IDPH inspectors might evaluate and/or inspect medical records, observe resident care, inspect all areas of the nursing home for health and safety compliance issues, and interview residents and their families or staff.

The IDPH also reviews "reportable events". A "reportable event" is anything from personnel changes at a given facility to deaths or injuries sustained by residents at a given facility.

How often are Nursing Homes Inspected in Illinois?

According to the IDPH, nursing homes are inspected at least every 6 to 15 months. The average rate of inspection in Illinois is once a year. Does once a year ensure that a nursing home facility is providing an adequate level of care to its residents and remaining compliant with state and federal regulations? Possibly. One the one hand, in Illinois, facilities are given no notice prior to an inspection. On the other hand, once a year inspections may not be enough in light of the fact that if a nursing home falls below a certain level of care, even for a short time, this can have devastating consequences, including negligence and abuse, which could result in resident injury or death.

What if, During an Inspection, the IDPH Finds that a Facility has failed to Comply with all Applicable State and Federal Licensure Standards?

The IDPH will cite the nursing home facility for deficiencies if it is not in compliance with state and/or federal regulations or rules. When a facility is found to be deficient in some area, the facility is required to submit a written plan of correction within 10 days detailing how and when each deficiency will be corrected.

The IDPH can also direct specific corrective measures that must be implemented by the facility if the circumstances so require the IDPH to do so.

In some cases, a nursing home facility is given an opportunity to correct any deficiencies with which it is cited, without the imposition of fines, penalties or other punitive measures. However, the IDPH may impose a fine, curtail admissions, appoint a temporary manager, issue a provisional license or even suspend or revoke a nursing home's license. In extreme cases, the IDPH may order a facility to close or have a facility's Medicare or Medicaid certification suspended or revoked by CMS.

What about the Illinois Nursing Home Care Act?

The Illinois Nursing Home Care Act provides another layer of protection for residents. The Act was enacted in response to concern over the increase of reports alleging inadequate and improper treatment of patients in nursing home facilities. The Act provides residents with the right to pursue actions for damages and other relief against nursing home facilities. Specifically, Section 3-601 provides that owner and operators of facilities are liable to a resident for injuries cause by intentional or negligent acts of their employees or agents. 210 ILCS 45/3-601.

Despite the many state and federal regulations and the laws that serve to protect residents of nursing home facilities, many residents continue to suffer from an inadequate level of care at some of Illinois' nursing homes. This inadequate level of care might be be the result of a number of factors, including but not limited to, decreased staffing, negligence and/or abuse.

If you or someone you love has been neglected in a nursing home, call the experienced attorneys at Ed Fox & Associates today.

Information on the regulation of Illinois Nursing Homes can be found at: http://www.idph.state.il.us/healthca/nhregulate.htm

Effective July 1, 2012 Ohio nursing homes must show that they are providing quality and comfortable care for their residents or risk losing a large chunk of their funding. This story caught my attention because it is a great plan that could be implemented by the legislature of any state, including Illinois. Nursing home neglect and/or abuse is often a result of nursing homes and their staff falling below a reasonable standard of care. If nursing homes must prove that they are providing quality and comfortable care, and the state sets the standards that such nursing homes must rise above, perhaps instances of nursing home neglect and/or abuse or nursing home injuries will decline.

Ohio will require its nursing homes to meet any five out of 20 standards or risk losing nearly 10% of their full Medicaid payments for services that they provide. Nursing homes that fall short will be docked based on how many standards they failed to meet. In the past, Ohio set goals that nursing homes should meet and if they met those goals, they would be given additional funding - but there was no cut for nursing homes who did not meet such goals. Rather than give money to those nursing homes who meet certain state goals, Ohio has chosen to take money away from those who do not meet certain state standards. This plan is likely to provide Ohio nursing homes with a greater incentive to meet a certain level of care set by the state, thereby increasing the level of patient care and decreasing the likelihood of neglect and abuse.

Hopefully other states, like Illinois, will follow Ohio and incentivize nursing homes by taking funding away from those nursing homes that fall below a certain level of care.

If you or someone you love has been neglected in an Illinois nursing home, call the experienced attorneys at Ed Fox & Associates today.

http://www.marionstar.com/article/20120412/NEWS01/204120319/Nursing-home-funds-will-tied-standards

The Florida Supreme Court has recently handed down two decisions regarding arbitration clauses in nursing home disputes (Shotts v. OP Winter Haven, Gessa v. Manor Care of Florida) The court struck down a segment of nursing home arbitration clauses that put in place damage caps that fell below what is legally recoverable in state court.

The rulings are being hailed as a big win for nursing home residents and their families. And though these cases come out of Florida, the effects of the decisions are predicted to be felt throughout other States. Legal experts are saying that the decisions may likely deter nursing homes in other states from imposing similar damage caps in their arbitration clauses.

Continue reading "Damage Caps in Nursing Home Arbitration Clauses" »

We have blogged before on the dangers of drug misuse in nursing homes. Drugs have been used to sedate and quiet patients though the drugs were not prescribed by patients' doctors.

Drugs, such as Zyprexa and Seroquel, designed to treat individuals with bipolar disorder and schizophrenia, are being used to sedate nursing home residents with dementia. The U.S. Department of Health and Human Services (HHS) recently advised Congress that nursing homes which rely on Medicare for funding should be penalized for prescribing these medications inappropriately.

HHS cited from a recent study which shows that 14% of all individuals in nursing homes were prescribed antipsychotics within 6 months of their stay.

Continue reading "Psychiatric Drugs Overused in Nursing Home Patients" »

The Chicago Tribune reported recently that in Illinois, the average cost of nursing home care per year is roughly $79,000 for a private room. A semi-private room runs at about $61,000 per year.

In 2020, an estimated 15 millions Americans will need some type of long term care and by all accounts, the cost of the care will not become any less expensive.

The cost of nursing home care in Illinois is shocking to any budget. It is important to investigate and research all options before choosing a nursing home. In doing so, the attorneys at Ed Fox & Associates urge people to look into whether the nursing home has been fined, ticketed, or otherwise punished for any infractions or violations. It is also critical to research the doctors and nurses on staff and be sure that they too have a clean record.

Finally, take the time to go meet and interview the primary care providers at the top nursing homes of your choice. Be sure that you, or your love done, would be comfortable being around these individuals every day. Furthermore, ask to meet some of the daily nursing home care staff. These are the people who are literally with residents 24/7.

Nursing home care is extremely costly. Before making such an important investment in the lives of yourself of your family member, take the necessary precautions to ensure you are making the right decision.

A Jacksonville, Illinois nursing home has been fined $2,200 by the State for failing to supervise a patient who died from choking on food this fall.

Jeff Lair, a Morgan County Coroner, ruled Marian Ryan's death an accident. However, Mr. Lair stated that the state investigation into her death was conducted upon his request.

According to the investigation report, Ryan was eating a sandwich at North Church Nursing & Rehab, when she began to choke and passed out. Ryan was taken to the hospital where she was pronounced dead.

The choking began after a nurse's aid briefly left the table where Ryan was sitting.

In October 2009, another patient at North Church (previously known as Golden Moments) choked on his food and died. The State issued a $50,000 fine to the nursing home. The case was later settled in October 2010 when North Church paid $32,500.

Continue reading "Local Nursing Home Fined for Choking Incident" »

Arbitration is a form of alternative dispute resolution. The purpose of arbitration is to attempt to resolve a conflict outside of the court system. In arbitration, a third party comes in and helps two disputing parties to resolve any conflict or issues and aid the parties in reaching a settlement. Arbitration settlements are legally binding. However, simply because one enters into arbitration does not necessarily mean the dispute will be resolved in the proceeding.

There has been increasing discussions in the nursing home community about placing arbitration agreements into nursing home service contracts. This means that if a resident of a nursing home is injured because of a nursing home's negligence, the resident cannot resort to the courts as an initial means of resolving the issue.

Residents, and/or their legal guardians, would be required to submit to arbitration before filing a lawsuit.

Continue reading "Controversial Arbitration Agreements in Nursing Home Abuse and Neglect Lawsuits" »

Marty Himebaugh, dubbed the 'Angel of Death', plead guilty on Thursday to criminal neglect of a long-term care facility resident. Himebaugh worked at a Woodstock, Illinois, facility that has since changed ownership.

Himebaugh is accussed of arbitrarily administering morphine and anti-anxiety medications to patients at the Woodstock home. Prosecutors say that her conduct recklessly endangered the patients' lives by giving unprescribed medications and excessive levels of morphine.

An investigation by the Illinois Department of Public Health found that she gave the residents drugs to ensure that the nurses' had a quiet shift.

On at least one occassion, Himebaugh gave a resident Avitan. Avitan is a medication used to combat anxiety and the side-effects include drowsiness and decreased balance. The resident fell on his head and suffered from a head injury as a result of being given the Avitan.

Continue reading "Illinois Nursing Home Nurse Pleads Guilty to Criminal Neglect" »

An Oak Park Charity hospital closed its doors to long-term care patients at the end of Summer 2011. The closure is blamed on the massive budget deficit that is plaguing Cook County.

The hospital was home to patients who required high levels of treatment and care. One such individual, Michael Yanul, was forced to transfer to a local area nursing home after the hospital shut down. Mr. Yanul had muscular dystrophy and required a ventilator to breathe. Mr. Yanul feared he would not survive the transfer and sadly, his fears became true.

Just three weeks after transferring to a local nursing home, Mr. Yanul died of pneumonia and a blood infection after a number of issues with his care arose at the home. Tom Yunal, Michael Yunal's brother, has filed a complaint against the nursing home claiming that the home lacked the necessary equipment to care for his brother and that the staff was not trained on how to care for him.

Transfers of this type are extremely complex and communication between the sending and receiving facilities are essential. Even minor changes in types of equipment used can prove fatal.

Continue reading "Chicago Area Budget Cuts Leave Transfer Patients at Risk" »

As experienced nursing home neglect and abuse attorneys, the attorneys at Ed Fox and Associates know many nursing home abuse incidents occur in understaffed and poorly maintained nursing home facilities. Given that many nursing homes are directly or indirectly funded through Medicaid and Medicare, we must pay close attention to the current budget crisis and legislative response to said crisis.

The effects of legislative budget cuts in Medicare and Medicaid funding has decreased nursing homes' ability to remain fully staffed with quality care providers. The increasing number of nursing home neglect and abuse cases filed in the past two years may be a further sign that the budget cuts are having detrimental effects on the nursing home industry and our senior citizens who rely on the industry's services.

With the current budget crisis on everyone's mind, the nursing home industry has reportedly decided to launch a multimillion dollar ad buy and advocacy campaign to prevent further Medicare and Medicaid cuts once Congress returns to Washington. "This nationwide campaign aims to inform our lawmakers that additional cuts to skilled nursing and assisted living threaten access to quality care needed by America's seniors and individuals with disabilities," said Mark Parkinson, president of the American Health Care Association. According to data recently released by Avalere Health, nursing home facilities have absorbed federal payment cuts in just the past two years that will add up to $128 billion throughout the next decade.

As nursing home neglect and abuse attorneys, we know the consequences of under or poorly staffed facilities. Understaffed and poorly maintained facilities are much more likely to have incidents of residents with pressure sores, fall accidents, and conditions related to poor nutrition.

Those of us with loved ones in a nursing home know the importance and peace of mind that comes with knowing our loved one is given the highest quality of care. If you or someone you know has suffered from nursing home abuse or neglect, please contact one of our experienced nursing home abuse and neglect attorneys today.

Healthwatch: Nursing homes launch TV, lobbying campaign to ward off Medicare cuts, August 29, 2011.

Authorities in Kentucky have handed over a recent case that alleges that a Northern Kentucky nursing home provided substandard care to many of its residents. U.S. Attorney Kerry Harvey filed a lawsuit alleging that Villaspring Health Care and Rehabilitation in Erlanger, Kentucky, roughly 100 miles from the Illinois border, and its parent company billed Medicare and Medicaid for "worthless" services and seeks reimbursement for the government. The Kentucky Attorney General sent this lawsuit to the U.S. Attorney in order to get the "best result possible", in other words to levy the greatest amount of fines against the nursing homes so that it will be adequately punished for the wrongs they committed with respects to many residents.

The allegations stem from incidents that occurred between 2004 and 2008 when numerous residents suffereed serious injuries because nursing home personnel did not properly follow physicians' orders, did not properly treat bed sores, did not update resident care plans and di not monitor blood-sugar levels of diabertic patients. Of these residents that were neglected adequate treatment, five died shortly afterwards the lawsuit alleges. Kenton County Attorney Garry Edmondson, who originally received the lawsuit and sent it to the Kentucky Attorney General has been quoted as saying that "I am confident that the elder abuse victims and their families will receive justice."

This is a step in the right direction to make sure that elder abuse and neglect does not go unpunished. It is important to note that victims of abuse and neglect, along with their families, have other alternatives for justice other than government intervention such as a private lawsuit against nursing homes that violate the law. Our attorney's have fought and won a number of cases in Chicago, Illinois and surrounding area. If you or someone you love has been the victim of nursing home abuse or neglect please contact one of our trusted and experienced attorney's to see that your or your loved one's rights are vindicated.

The New Republic, Ky. nursing home case alleging substandard care given to federal prosecutors for 'best result', July 20, 2011.