South Carolina Nursing Home Blog

Weak Penalty for Mental Cruelty

Ray Mullman — Mon, 15 Mar 2010 14:27:07 -0500

Arizona Daily Star reported that Posada Del Sol nursing home has agreed to pay a fine of $4,000 to the Arizona Department of Health Services for failing to protect six of its residents from abuse.

The 156-bed facility represents that they are experts who specialize in caring for people with complex behavioral-health issues. State inspectors said the nursing home failed to protect six residents from "mental and/or verbal abuse" regarding food preferences, and from an abusive environment toward bariatric/obese patients.

In one case, a physician had authorized a patient to eat meals in bed due to pain from bladder spasms, the staff ignored the orders and, except for one can of supplement, refused to give the resident any food. A nurse even taunted the resident with a food tray in an attempt to coerce the resident to the dining room.

In another case, a resident with excruciating back pain asked to eat meals in bed but was denied and given a can of supplement instead, the report says.

Posada Del Sol recently made "leadership changes" and retrained its patient-care and food-service workers.

The U.S. Centers for Medicare and Medicaid's nursing-home rating system gives Posada Del Sol a rating of one star - its lowest designation, meaning "much below average."

See the person, not the disease

Ray Mullman — Mon, 15 Mar 2010 09:03:15 -0500

Mary Fridley at Gero-Resources wrote the following for The Capital.

DEAR MARY: I just lost my dear husband of 65 years to Alzheimer's disease. Mary, you would hardly believe the many times I thought about you during his stay in the hospital and nursing home. I am so glad we had the experiences of the wealth of knowledge you shared through the many workshops and seminars we attended together.

During this difficult period there were many times I thought how much the staff would benefit from your depth and detail of knowledge of dementia care. I was horrified by how they handled him; like he was a piece of meat. One time two aides were moving him up in the bed and slammed his head into the headboard. No one talked to him like he had any sense at all. Even the doctor dismissed him as if he should just die.

He was capable of following directions if they took the time to tell him what to do. Instead, they just did things without warning, which frightened him. I think they could learn a lot by being in bed for a day and having someone tend to all their needs. They would discover how humiliating and degrading an experience it is.

My husband was a person and the love of my life, and I would do anything to have him with me today - even in his Alzheimer's state. He was a gentle, loving soul who would never hurt anyone. I am heartbroken over this experience.

DEAR READER: Please accept my sincere condolences on the loss of your husband. And I am sorry your final days together were so dreadful. No matter how often I hear this story (and I've heard it many times), it never fails to outrage me. The staff broke the most basic rule of care: to see the person, not just the disease.

It should be required that people take a sensitivity course before they work with the elderly. They should be put through the rigors of daily care, such as you suggested, experiencing first hand what it's like to be on the receiving end. I hope your letter sparks discussion among staff to do better.

I know you are grieving, but I encourage you to write a letter to the administrators of the offending facilities. They need to know about your experience. Peace be with you.

___________

I like that. See the person, not just the disease. Nursing home employees especially unqualified CNAs do not get enough training on how to take care of demented residents. It is a shame and a disgrace.

Long Term Care Hospitals

Ray Mullman — Sun, 14 Mar 2010 08:19:06 -0500

The New York Times had an interesting article about the growing industry of long term care hospitals. The greedy owners manipulate the Medicare and Medicaid regulations on reimbursement to make even more money and profit.

Fewer than 10 hospitals dedicated to long-term care existed in the early 1980s, according to Medicare officials. More than 400 long term care hospitals have opened nationally in the last 25 years. These hospitals have sprouted driven by Medicare rules that offer high payments for hospitals that treat patients for an average of 25 days or more. Long-term care hospitals now treat about 200,000 patients a year, including 130,000 Medicare patients — at a projected cost of $4.8 billion to the government this year, up from $400 million in 1993.

Among the more peculiar aspects of long-term care hospitals is that nearly half of them, and almost all of Select’s, are actually “hospitals within hospitals.” They do not have their own buildings and instead occupy a floor or two of an existing hospital. They contract most services from the host hospital, so they can be opened quickly and cheaply.

Yet under Medicare rules, because they have different owners, the two hospitals are considered separate for payment purposes. This means there can be a second reimbursement when a patient is simply transferred between floors. Under Medicare payment rules, traditional hospitals often lose money on patients who stay for long periods. So they have a financial incentive to discharge patients to long-term hospitals, which then receive new Medicare payments for admitting the patients. Both hospitals benefit financially. The industry’s growth is an example of how health care companies can exploit the $450 billion Medicare program.

Few long term care hospitals have doctors on staff. Select, which has 23,000 employees and provided care to 42,000 patients in 2009, has no physicians on its board or in management. In 2007, it hired a physician for a new position, national medical director. The physician, Dr. David Jarvis, does not work at Select’s headquarters in Mechanicsburg, Pa., and has no management responsibilities. He estimated he spent only 10 hours a week working for Select Medical. Select Medical Corporation is a publicly traded Pennsylvania company that runs 89 long-term hospitals, more than any other company.

Lawsuits, state inspection reports and statistics deep in federal reports paint a troubling picture of the care offered at some Select hospitals, and at long-term care hospitals in general. For-profit long-term hospitals generally spend less on patients and have higher margins than comparable nonprofits, according to data from the Medicare Payment Advisory Commission, a Congressional research agency. In 2007, for-profit long-term care hospitals had margins of 6 percent on Medicare patients, while regular hospitals lost an average of 6 percent on Medicare patients, according to the commission. In a presentation to investors last month, Select Medical reported that it improved its margins by lowering staffing levels and supply costs. Medicare inspection reports, however, describe preventable patient injuries and deaths, and they portray Select’s hospitals as understaffed and with high turnover.

In 2007 and 2008, Select’s hospitals were cited at a rate almost four times that of regular hospitals for serious violations of Medicare rules. Other long-term care hospitals were cited at a rate about twice that of regular hospitals. Long-term care hospitals also had a higher incidence of bedsores and infections than regular hospitals in 2006, the most recent year for which federal data is available.

Unlike other specialized hospitals, like psychiatric or children’s hospitals, long-term care hospitals do not treat specific types of patients or offer services unavailable in regular hospitals. They are defined solely by the fact that they keep patients longer than other hospitals. They are also smaller than a typical hospital, averaging about 60 beds.

Despite the rapid expansion of long-term care hospitals, Medicare has never closely examined their care. Unlike traditional hospitals, Medicare does not penalize them financially if they fail to submit quality data.

Select also manipulates how long patients stay, to maximize its profits. A hospital is certified as a long-term care hospital and receives high Medicare reimbursements if most patients stay at least 25 days. But Medicare pays the hospital a set amount for each patient, meaning that patients who stay longer than that become less profitable. Therefore, long-term care hospitals are most profitable if most patients are discharged at or just after their 25th day, with a few discharged earlier. Select adheres closely to this formula, with an average length of stay at its hospitals of about 24 days, according to public filings. At some Select hospitals, the 25th day is called the “magic day,” ex-employees say.

Partly owned by a private equity firm, Select Medical sold shares to the public in September. Its top two executives, a father and son named Rocco and Robert Ortenzio, have made about $200 million from salary, benefits and share sales since founding Select in November 1996. The Ortenzios, who are veterans of the for-profit hospital industry, still own about 10 percent of the company, worth about $200 million.

Stress of being a family caregiver

Ray Mullman — Sat, 13 Mar 2010 12:56:53 -0500

Auburn Pub had a great article on the increase of family caregivers, and the problem of burn out, frustration, and exhaustion that naturally arises. The article is based on information from New York but the results and demographics apply nationwide.

2.2 million New York residents are the caretakers of a parent, spouse, grandparent or friend. Their work is worth about $25 billion, which reduces state and federal health care costs, according data from the AARP, and allows the sick to remain at home. T he emotional cost for caregivers is immeasurable. Many caregivers have only a few hours to themselves a week, become secluded from their community because those they care for cannot leave home or be left alone, and neglect their own health from being so focused on the health of someone who will not get better.

More than half of caregivers live with the person they care for, and spend with that person anywhere from 10 hours a week to 24 hours day, according to a study by the state Office for the Aging that surveyed 1,109 caregivers between May and June 2008. The study, which aimed to identify New York's caregivers and their needs, found that the average caregiver is a white female caring for a parent or a husband.

The study, “Sustaining Informal Caregivers,” shows that a majority of caregivers, 75 percent, care for someone who has been diagnosed with Alzheimer's disease or another form of dementia. About half say the person they care for cannot be left alone. They reported an average of 10.3 hours a day spent providing care - more than a full-time job.

Guilt, isolation and physical exhaustion are only a few of the side effects of full-time care giving. The job can have serious health consequences, said Dr. David Strickland, director of the Center for Behavioral Health at Auburn Memorial Hospital.

Full-time caregivers commonly experience clinical depression, sleep deprivation and inadequate nutrition. The frustration that builds while caring for another person day in and day out can turn into anger, and anger can lead to depression or thoughts of harming the person receiving care, Strickland said. He said the guilt of feeling negatively toward someone whom they still love often leads caregivers to ignore mental health problems, such as suicidal feelings.

“Accept these things do occur and are not to be ashamed of,” Strickland said, rather than ignoring - and exacerbating - the problem.

Caregivers should contact a doctor with any serious health problems, but interaction with others, especially other caregivers, can help manage the daily stress, Strickland said.

Cayuga County's Office for the Aging networks caregivers, educates them about the diseases they deal with and helps them find ways to cope, by connecting them to aids, recommending day programs or just lending an open ear. The decision to make the move to a nursing home is among the hardest decisions caregivers make. But it is a move Strickland advises caregivers to see as an opportunity. Nursing homes can manage the daily hygiene and medication that are among the most stressful tasks of caring for someone, making time spent together enjoyable again, he said.

“You don't have to be a caregiver,” Strickland said. “You can be a sibling, a child, a relative.”

The fear that nursing home staff will not be able to provide adequate personalized care available at home is a major reservation for people considering the move.

Coping strategies

Tips for stressed caregivers from Dr. David Strickland, director of the Center for Behavioral Health at Auburn Memorial Hospital:

Recognize you are not alone - join a support group. Resources such as the county Office for the Aging and the Alzheimer's disease Web site can direct you to groups for caregivers that meet regularly.

Take time for yourself - write it in your schedule. Even if you can spare only an hour, spend a little time every week doing something you enjoyed doing before you became a full-time caregiver.

Build a relief system. Keep in touch with friends and family who can lend a hand in caretaking or lend an ear to listen when you need to talk.

Look into respite care. Many facilities offer overnight stays for both you and the person you care for that allow you to take a break without being far away.

Do not ignore your mental health. Know the signs of depression - sleeplessness, guilt, hopelessness, and suicidal thoughts - and consult a doctor if you recognize them in yourself.

Taking Responsibility

Ray Mullman — Fri, 12 Mar 2010 09:03:39 -0500

Boston Herald had a great article about a family's attempt to learn the truth behind a document a resident allegedly signed while suffering from delusions and memory loss. They hope to shed light on what she called an “outrageous and deceptive” practice. Having demented residents sign their right to a jury trial away. This is a tragic story that I hear all the time. Resident clearly gets hurt by negligence of facility. The facility, instead of taking responsibility, tortures the family by ridiculous legal machinations such as arbitration, health courts, malpractice tribunals. This family has waited years for closure.

John J. Donahue died after suffering injuries at a Brockton nursing home in 2005. Donahue, a paralyzed retired railroad engineer, spent the final 46 days of his life being shuffled between nursing homes and hospitals following an eye injury he suffered at Embassy House, Hoey said. On Sept. 5, 2005, Donahue’s left eye was gouged by a metal safety hook on a machine an employee was using to move him from his bed. Two people were supposed to operate the machine, called a Hoyer lift, per facility policy, according to a state investigation on the incident. The state Department of Public Health investigated Sept. 21, 2005, and found the allegation of neglect to be valid. The certified nursing assistant who operated the Hoyer machine alone was fired.

He was taken to the hospital more than 15 hours later, where his eye was removed. Donahue died weeks later of sepsis causing blood clots and organ failure. Hoey said experts will testify at trial that the eye trauma placed Donahue in a compromised state, which made him more susceptible to disease and infections.

Two years later, Owens filed a lawsuit alleging the nursing home’s negligence led to her father’s health decline, and in turn, his death. The nursing home claimed that Donahue had signed an arbitration agreement in 2003, when he was 91, waiving his right to a trial if he was injured or killed.

Arbitration agreements are becoming more common at nursing homes and they are costly and time-consuming to contest, said Donahue’s attorney, David Hoey of North Reading. Hoey said he fought the alleged agreement for two years, until the Court held the agreement was void based on testimony and records from staff at Embassy House Skilled Nursing and Rehabilitation Center in Brockton.

In December 2003 - the month Donahue signed the agreement - staff noted that Donahue made “confused, depressed (and) delusional statements” and showed “delusional ideation,” according to the February 2009 Plymouth Superior Court order signed by Judge Charles J. Hely. Hely ruled that Donahue was “unable to act in a reasonable manner” on the arbitration contract and that Embassy House “had reason to know of this significantly impaired condition.”

On Feb. 9, a Superior Court medical tribunal cleared the case to go forward to trial. In Massachusetts, medical malpractice lawsuits must be heard by a tribunal before going to trial.

Plea deal in abuse charge

Ray Mullman — Thu, 11 Mar 2010 08:39:23 -0500

Kentucky's LEX 18 reported that a plea deal has been offered to a nurse's aide accused of abusing an elderly patient at a Madison County nursing home. Amanda Sallee was set to go to trial on wanton neglect and abuse charges on March 15.

Sallee is one of three former nurses aides at Madison Manor Nursing Home in Richmond accused of abusing the late Armeda Thomas. The 84-year-old's granddaughter placed hidden cameras in Thomas' room, fearing Thomas was being neglected by nursing home staff. Sallee is seen on tape eating Thomas' food instead of giving her the meal.

Two other women have pled guilty to similar charges after they were caught on camera taunting and grabbing Thomas around the neck. Thomas' family is also pursuing civil action in addition to the investigation brought on by the attorney general's office.

Fatal Fall at Nursing Home

Ray Mullman — Wed, 10 Mar 2010 08:34:18 -0500

Minnestoa Public Radio reported a story about a resident in a St. Anthony nursing home rwho fell, hit her head, and died four days later, after an employee failed to follow basic safety precautions, according to state health investigators. An investigation by the Department of Health cited the employee for neglect. The incident occurred after a nursing assistant at St. Anthony Health Center left the resident's room without setting a sensor alarm, lowering the bed, or placing a mat by the bed.

Her doctor ordered these precautions in the resident's care plan, after determining that the resident was at risk of injury from falls. The resident suffered a fatal hematoma on her forehead from the fall. She appeared drowsy and weak after the incident. Within two days, her condition had worsened, and included "periods of unresponsiveness and apnea," the report said.

The resident was admitted to hospice where she died.

Incredibly, the death certificate lists the cause of death as heart disease.

SC House takes away right to jury trial

Ray Mullman — Tue, 09 Mar 2010 08:09:56 -0500

The South Carolina House has passed another "tort reform" measure which is not necessary, most likely unconstitutional, and clearly arbitrary. The Sun News had an article and it is very interesting what critics and proponents said. The bill will place an arbitrary cap on how much a jury could award against reckless or intentional conduct. The measure limits the amount juries could award to deter or punish a business for gross negligence. Punitive damages could be $350,000 or three times compensatory damages, whichever is greater. The purpose of punitive damages is to deter or punish.

Opponents said multi-million-dollar lawsuit awards are extremely rare in South Carolina. The executive director of the South Carolina trial lawyers' association said a review of verdicts from courts in the state's three largest counties - Richland, Charleston and Greenville - shows how extraordinary it is for a jury to award punitive amounts at all in this state. Of the 136 personal injury verdicts in those counties in 2007 and 2008, juries awarded punitive damages in seven of them, and only two of those involved more than $7,000, said Mike Hemlepp, executive director of South Carolina Association for Justice. He noted an amount seen as unfair could be decreased either by the trial judge or an appeal.

"Is there any evidence they're saying, 'We're not coming because of tort law?'" asked Rep. Bakari Sellers, D-Denmark. "Tort reform is something people want until it's their family member or friend who gets injured."

House Judiciary Chairman Jim Harrison, R-Columbia, acknowledged those numbers don't indicate a problem.

Rep. Doug Jennings, D-Bennettsville, argued punitive awards are meant to discourage companies and people from blatantly disregarding how their actions may injure others, but the limits mean they won't be discouraged from changing their ways.

Hemlepp said the measure is designed to squash cases from going to court. Civil lawsuits often involve clients who can't pay lawyer fees upfront, which means lawyers won't take frivolous cases. But since lawyers often get paid by taking one-third to 40 percent of the award, capping punitive damages means fewer cases will be taken.

The vote comes five years after the Legislature capped pain-and-suffering awards for medical malpractice lawsuits at $350,000. Todd Atwater, CEO of the South Carolina Medical Association, said the rates of medical malpractice insurance are going down, as are the number of claims.

Staffing Problems Continue

Ray Mullman — Mon, 08 Mar 2010 08:58:59 -0500

There are some great people working at nursing homes, below are not stories about them:

WCAK.com had a story about Rhonda Skiver who pled guilty to grand larceny after embezzling more than $163,000 from an upstate New York nursing home where she worked as chief financial officer. She was struggling to pay off gambling debts and costs from a failed marriage has admitted to stealing the funds for resident care from Absolut Center for Nursing and Rehabilitation in Orchard Park, where she had worked for 10 years. Rhonda Skiver could face up to 15 years in prison at sentencing on May 17. Buffalo News also had an article on the arrest.

______________________________________________________________________

SheboyganPress.com had a story about Ross H. Hoblitzell who was a nursing home activities director . He was charged after being captured on surveillance video stealing cash from the Plymouth Senior Center. Hoblitzell could face up to seven and a half years in prison, if convicted on the count of felony burglary.

The manager of the senior center contacted police Monday morning after discovering money was missing from parking meter proceeds left in the senior center office. The manager also noticed a camera installed after a prior burglary had been moved. The video showed Hoblitzell starting to remove the money, then noticing the camera and attempting to reposition it so he is not recorded. He then appears to try removing it, but fails, after which he picks up change from the floor and places it back in its container. Hoblitzell admitted taking money for gas for his vehicle because he was having financial difficulties. He admitted taking money from the senior center in the past as well. _______________________________________________________________________

St. Joe News had a story about Janet Sue Tinker who pled guilty to stealing prescription drugs from a nursing home for her son to sell. Tinker started working as a licensed practical nurse (LPN) for Carriage Square Health Care Center in November 2008. Around August of last year, she began pocketing medications.

Ms. Tinker took drugs home and left them on a table for her son Ryan O. Tinker, 20, according to her testimony. The stealing went on for at least two months and included Ativan, Xanax, Lortab and morphine. A Crimestoppers tip led police to look into the family’s activities in September.

Ms. Tinker told Circuit Court Judge Pat Robb she never explicitly told her son to sell the drugs but left them for Mr. Tinker to find, knowing that would be the result. In a convoluted explanation, she said to the court, “There is a very unhealthy relationship between my son and I,” and added she hoped providing the drugs to her son would lead him to move out of her house on Safari Drive.

“It just doesn’t make sense to me,” Mr. Robb told her when she maintained she never instructed her son to sell the drugs but it was an understanding.

Dementia and feeding tubes

Ray Mullman — Sat, 06 Mar 2010 08:16:35 -0500

Reuters had an article discussing the overuse of feeding tubes with demented residents. Whether or not a person with advanced dementia winds up with a feeding tube have more to do with economic concerns than his or her wishes, suggests a new study out in JAMA (Journal of the American Medical Association). Dr. Joan M. Teno of Brown University in Providence, Rhode Island, and her colleagues found that hundreds of patients who had specified, in writing, that they did not want a feeding tube received one anyhow.

Feeding tubes don't extend survival for people with advanced dementia who can no longer swallow, and provide no other apparent benefits to these patients, according to two reviews of the medical literature, Teno and her team note in their report.

Tube feeding can also cause harm, the researcher added in an interview; demented patients who are bothered by the tube and try to remove it may be physically restrained or placed on heavily sedating drugs.

Up to a third of nursing home patients with advanced dementia have a feeding tube, Teno and her colleagues note in their article. In two-thirds of these cases, the tube was inserted while a patient was in the hospital.

To investigate what factors might influence whether or not a hospital would use feeding tubes in people with advanced dementia, Teno's team looked at 2000-2007 records for nearly 2,800 hospitals, all of which had admitted at least 30 patients who were 66 or older, had advanced dementia, and were living in nursing homes. Their analysis included Medicare claims for 163,000 patients and nearly 281,000 hospital admissions.

Twelve percent of the hospitals didn't insert a feeding tube in a single patient with advanced dementia throughout the eight-year study period, the researchers found. But at one quarter of the hospitals, patients had a 1 in 10 chance of feeding tube insertion; hospitals with the highest rate of feeding tube use inserted them nearly 40 percent of the time.

For-profit hospitals were more likely to use feeding tubes, as were larger hospitals and those with the highest level of intensive care unit use for patients in their last six months of life.

Recognition is growing that dementia is a terminal illness that affects the body as well as the mind, Teno told Reuters Health. And when a patient with dementia begins having trouble eating, she said, this indicates the final stage of the illness has arrived. For these patients, she added, careful hand feeding can offer a safer and more comfortable alternative to feeding tube insertion, "but it takes staff time and effort."

According to Buchman, the amount of caregiver time and effort to work with patients and try to feed them by mouth and to do it safely is "substantial."

Emory University Hospital's 2006-2007 rate of feeding tube insertions for patients with advanced dementia was 24 per 100; Buchman said he did not want to comment on those figures, given that he has only been working at the hospital since July 2009.

The hospital had one of the highest rates of feeding tube use in patients with advanced dementia, according to Teno's study, with 37.5 insertions for every 100 admissions of such patients in 2006-2007.

Although her study didn't investigate why hospitals opted for feeding tube insertion, Teno said it's likely that cost concerns are a factor. Most of these older patients are on Medicare and Medicaid, and the way that reimbursement works means nursing homes tend to ship them to hospitals when they get sick. Then, hospitals will try to discharge these patients back to the nursing home as quickly as possible. Inserting a feeding tube allows the hospital to discharge a patient faster, Teno added, while for nursing homes, tube feeding is less time consuming than hand feeding.

It's questionable, Teno noted, whether hospitalizing these patients in the first place is helpful. "It can be very disruptive and very stressful to take someone who is in the throes of dementia and put them in an acute care hospital," Teno said. "I'm really concerned that the financial incentives now are aligning with hospitalizing these people rather than trying to keep them in a less restrictive environment and treat them in a nursing home."

For a person with advanced dementia, the onset of eating difficulties should be "a stop sign to say listen, we need to talk about what are the patient's wishes and values for future medical care," she added. "Helping people make the best decision for their loved one is very important."

Teno and her team have compiled a list of hospitals and their rate of feeding tube insertion in patients with advanced dementia, which is available online here

SOURCE: Journal of the American Medical Associations, February 10, 2010.

"Kung Fu Judge"

Ray Mullman — Fri, 05 Mar 2010 08:51:05 -0500

NY Daily News had an article about Judge "Kung Fu" Phillips who died at a nursing home as a result of neglect and negligence. Prospect Park Residence - where Judge John Phillips lived for eight months until his death two years ago - refused to give him a diabetic menu and frequently missed giving him required insulin shots.

Phillips - known as the "Kung Fu judge" during his 17 years on the Civil Court bench for his habit of making martial arts moves in court - died at 83 in February 2008 after collapsing in a Prospect Park Residence elevator.

Phillips' nephew, the Rev. Samuel Boykin, who is managing his estate, said he noticed signs of trouble soon after Phillips moved into the Prospect Park West nursing home. He insisted poor care - not just advancing age - led to Phillips' decline, noting the judge was "a health fanatic."

"My uncle was a 10th-degree black belt in Asiatic martial arts," he said. "He never drank. He never smoked cigarettes. He went to bed every night at 8 o'clock.

Tort Reform is a red herring

Ray Mullman — Thu, 04 Mar 2010 08:37:53 -0500

Call for Medical Liability Reform a Red Herring Proffered byOpponents of Meaningful Health Care Reform. Crisis Does Exist, But it Is in Patient Safety, Not Malpractice Litigation.

With President Barack Obama's health care summit pending, a lot of politically expedient misinformation about medical liability reform is being spread. Public Citizen issued a new report this week to correct the record and highlight the five key points in the malpractice crisis that have largely been ignored:

1. Medical malpractice payments have fallen steadily for years and are now at or near historic lows;

2. Although an experiment in Texas has been promoted as proof of the potential benefits of so-called "tort reform," health care cost increases in that state have far outpaced the national average since it instituted strict liability limits in 2003. Meanwhile, its worst-in-the-nation uninsured rate has gotten even worse;

3. Most of the money paid out for medical malpractice is for serious outcomes, such as death or quadriplegia. Tort reform proponents call for damage caps that would affect the ability of seriously injured people to obtain reasonable compensation; the caps would not reduce the incidence of alleged "junk lawsuits";

4. A serious patient safety crisis does exist; and

5. Addressing senseless medical errors would save several times as much money as the combined costs of the medical malpractice litigation system, including those for verdicts and settlements, defense litigation, and liability insurance companies' profits and overhead.

Medical malpractice litigation has fallen steadily throughout most of the past decade and is now at or near the lowest level on record, analysis of the federal National Practitioner Data Bank shows.

The real crisis surrounding medical malpractice is not the cost of litigation but rather the amount of malpractice. Only about 11,000 malpractice payments are made on behalf of doctors every year. The true inequity in the malpractice system is that so few victims receive any compensation at all. But even if injured patients were to receive compensation for their medical needs, that still would fail to address the tragedies inflicted by medical malpractice.

As policymakers become aware of the truth - that medical malpractice litigation is quite rare and represents only a tiny fraction of overall health care cost - the outspoken tort reformers have turned to a new argument. Now they claim that it is not litigation, but the fear of litigation, driving skyrocketing health care costs, with doctors ordering excessive tests and procedures (so-called "defensive medicine"). In reality, the cost of the entire medical liability system - including payments, litigation costs and insurance company profits and overhead - amounts to less than six-tenths of 1 percent of national health care expenditures, according to Public Citizen's analysis.

For more information, Public Citizen's report assessing national medical malpractice data is available at http://www.citizen.org/documents/NPDB_Report_200907.pdf. Public Citizen's report analyzing Texas' 2003 liability law is available at http://www.citizen.org/documents/Texas_Liability_Limits.pdf.

Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C.

For more information, please visit www.citizen.org. Contact: Taylor Lincoln (202) 454-5197, Barbara Holzer (202) 588-7716

Omnicare profits triple

Ray Mullman — Wed, 03 Mar 2010 13:53:00 -0500

The Washington Post reported OmniCare's profits soared because of recent settlements for kickbacks decreased their anticipated legal defense costs. Omnicare Inc., which dispenses drugs to nursing homes and long-term care facilities, said its profit almost tripled in the fourth quarter after it resolved allegations it paid kickbacks to nursing homes, and received money for buying and recommending drugs.

In June, Omnicare agreed to pay $98 million to settle the investigation. The terms were completed in November. The Justice Department said Omnicare paid $50 million to Mariner and Sava Senior Care owner/operators Murray Forman, Leonard Grunstein, and Rubin Schron to gain their business, while also asking for and getting kickbacks from two drug companies for recommending their products.

In the fourth quarter, the company said its profit rose to $80 million, or 68 cents per share, from $27.6 million, or 24 cents per share, a year earlier. Omnicare said it earned 74 cents per share from continuing operations, but that includes a tax benefit of 11 cents per share. Its revenue fell 2 percent to $1.54 billion from $1.57 billion

Analysts expected a profit of 63 cents per share and $1.55 billion in revenue, according to a Thomson Reuters survey.

The company reported a total of $5.7 million in pretax litigation costs in its latest quarter, compared to $48.1 million pretax a year ago.

Omnicare said its pharmacy services revenue fell 1 percent to $1.51 billion from $1.53 billion. The decline came from greater use of low-cost generic drugs, smaller reimbursement payments for certain drugs, and a decrease in the amount of beds served. The company said it did more business with assisted living facilities, which typically don't buy as many drugs as acute care centers or other facilities it does business with.

Revenue from Omnicare's clinical research business slipped to $34.3 million from $49.1 million.

In 2009, Omnicare said its profit jumped 51 percent to $211.9 million, or $1.80 per share, from $140.5 million, or $1.19 per share. Revenue decreased less than 1 percent to $6.17 billion from $6.21 billion.

Kickback Settlement

Ray Mullman — Wed, 03 Mar 2010 08:51:14 -0500

Numerous websites and news organizations have written about the recent settlement between the DOJ and Murray Forman, Rubin Schron, and Leonard Grunstein, owners and operators of hundreds of nursing homes through various entities such as Mariner, Sava Senior Care and Fundamental Long Term Care Holdings. See articles and press releases here, here, here, here, here, here, here, here, here, here, here, and here.

What is incredible and disappointing about the settlement is the DOJ only made these criminals pay $14 million but did not make them testify, admit guilt, payback the kickback, or take away their ability to continue owning and operating nursing homes. What kind of penalty is $14 million when they have stolen millions more from Medicare and Medicaid? Why did the DOJ make the now defunct Mariner pay but not their successor Sava Senior Care? Why did they allow the Complaint to be dismissed before the settlement? Why did they allow Forman and Grunstein, the masterminds behind the illegal scheme deny any responsibility or wrongdoing? Why didn't they make Forman and Grunstein pay the kickback back to Medicaid and Medicare?

The settlement resolves the United States’ allegations that the defendants solicited and received kickback payments from Omnicare, Inc. (“Omnicare”), the nation’s largest pharmacy that specializes in dispensing drugs to nursing home patients.

"As outlined in the government's complaint, Rubin Schron, Leonard Grunstein and Murray Forman tried to disguise an unlawful kickback payment," said Mary Louise Cohen, a Washington, DC, attorney with Phillips & Cohen LLP, which represents the whistle-blower. "Omnicare's $50 million payment for a small unit of Mariner Health Care -- which had less than $3 million in assets and only two employees -- just didn't add up without figuring out what else Omnicare was getting as part of the deal."

In a Complaint filed in March 2009 and unsealed in November 2009, the United States alleged that Omnicare, Mariner, Sava, Grunstein, Forman, and Schron conspired to arrange for Omnicare to pay $50 million in exchange for agreements by Mariner and Sava to use Omnicare’s pharmacy services for 15 years. In 2004, Grunstein and Forman proposed that Schron provide financial backing for the acquisition of Mariner, which at that time was one of Omnicare’s largest customers. Grunstein and Forman attempted to arrange the Mariner acquisition so that Schron would have to contribute as little cash as possible. To achieve this end, Grunstein and Forman pursued a plan to sell to Omnicare the right to continue providing pharmacy services to Mariner, even though Forman was warned by lawyers that selling the right to provide pharmacy services would constitute an illegal kickback.

Grunstein and Forman thereafter arranged for Omnicare to pay them $50 million to purchase a Mariner company that had only two employees and no tangible assets. Omnicare paid $40 million of this amount up front, prior to actually acquiring the Mariner business unit, and simultaneously obtained new 15-year pharmacy contracts from Mariner and from Sava, a new nursing home chain that Grunstein and Forman created from Mariner. Grunstein and Forman illegally tied the new pharmacy contracts to Omnicare’s agreement to purchase the small Mariner business unit, and that the total $50 million purchase price for the business unit actually was a kickback by Omnicare to keep the future business of Mariner and Sava. In 2006, after the Government issued subpoenas concerning the transaction, the individual defendants created backdated documents in a further attempt to hide the kickback.

In November 2009, the United States and Omnicare entered into a $98 million settlement agreement that resolved Omnicare’s civil liability under the False Claims Act for paying kickbacks to keep the Mariner and Sava business. So Forman and Grunstein coerced OmniCare to pay them a $50 million kickback and Omni had to pay $98 million but Forman and Grunstein and their companies only had to pay $14 million!?!

As part of the settlement, Mariner has entered into a corporate integrity agreement. This agreement provides for Mariner to put in place procedures and reviews to avoid and promptly detect conduct similar to that which gave rise to this matter. At the same time, OIG-HHS has reserved its rights to seek exclusions of Sava, Grunstein, Forman, and/or Schron from participation in Medicare, Medicaid, and all other Federal health care programs.

"I suspect that if you got [Grunstein, Schron and Forman] all in a room and asked them whose fault this was, they'd all be pointing at someone else," says one person familiar with the case. "And that's really what this transaction was about --setting up all these different entities and shells and moving pieces so that nobody had responsibility."

Rubin Schron, a New York real estate investor who along with National Senior Care Inc., bought Mariner Health Care Inc., which is at the center of the kickback scheme. -- Leonard Grunstein, a New York real estate attorney who was a partner with the law firm, Troutman Sanders. He was Schron's agent in the purchase of Mariner Health Care Inc. and in the alleged kickback scheme. -- Murray Forman, an associate of Grunstein's and Schron's who also is president of a Long Island school board. -- Mariner Health Care Inc., a Delaware corporation with headquarters in Atlanta, Georgia, that operates nursing homes and, according to the government's complaint in this case, is controlled by Schron. -- SavaSeniorCare Administrative Services LLC, a privately held Delaware company with headquarters in Atlanta, Georgia, also reportedly controlled by Schron. Sava affiliates lease and operate nursing homes.

This settlement is part of the government’s emphasis on combating health care fraud. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover approximately $2.2 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department’s total recoveries in False Claims Act cases since January 2009 have topped $3 billion

Tort Reform

Ray Mullman — Tue, 02 Mar 2010 08:54:07 -0500

See article from CBS News legal analyst Andrew Cohen in The Atlantic, where he calls tort reform, "one of the most blatantly anti-democrat concepts to have hit the legal system in the past century."

If President Barack Obama has to hand his adversaries a bauble in order to achieve success with health care reform, it might as well be the misnomer commonly known as "tort reform." The ends of providing insurance for millions of uninsured Americans, never mind whatever good it might do for the rest of us, is worth the means of giving Corporate America yet another legally-sanctified level of protection against the wailing interests of its customers, consumers, patients, and just plain innocent bystanders.

But let's not kid each other any longer. As we brace ourselves for yet another round of wrangling over the tail and not the dog, let's all stipulate that "tort reform" is one of the most blatantly anti-democrat concepts to have hit the legal system in the past century. It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

"Tort reform is little more than a scam by an unpopular minority (corporations) against an enormous majority (anyone who is eligible to serve on a jury or who ever already has)." Wouldn't it be great if the President forced those words out of the mouth of the Chamber of Commerce president in exchange for even friendlier litigation rules for Big Business as it confronts changes to our national approach to health care?

I don't use the word "scam" lightly above. Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.

Instead, these verdicts came from jurors, one of the justice system's--one of all of governments'--few remaining unassailable cogs. Each time a jury awards a large sum to a plaintiff against a negligent defendant, it's a statement from jurors that the sort of conduct alleged and proven is worthy of punishment by the community. Sometimes, this is the only time in the lives of these people, these jurors, when they will have such an extraordinary say about the events of their time and place. Sometimes they are right. Sometimes they are wrong. But at least in these circumstances they make a difference based solely upon the fact that they are residents of a particular venue.

Make no mistake--the "reform" in "tort reform" is about eliminating or reducing the ability of trial juries to act as levelers of the playing field; as avengers of otherwise toothless victims; as the voice of a community in meting out justice. It is about helping corporations before individuals; about the bottom line and not the bottom rung. Alas, many of the same folks who tout individualism and freedom and liberty against government control evidently have no qualms about using support for tort reform as their ticket to worship at the Altar of corporate control.

The reason the topic is again in the headlines is because opponents of health care reform evidently don't have anything better to argue about in their efforts to stop passage of the pending legislation. Fine. The President and his fellow Democrats should concede on tort reform. And at the same time, he should figure out a way to track whether reductions in jury awards, and concomitant decreases in the costs of malpractice insurance, reduce the ultimate cost to consumers of health care and at the same time generate better quality of service.

Of course, we all know what the answers to those questions will be. Which now that I think about it is another thing we ought to be honest about.

Seniors for Sale

Ray Mullman — Mon, 01 Mar 2010 08:04:09 -0500

The Seattle Times had a great article called "Seniors for Sale". The article discusses the unfortunate plight of Nadra McSherry. She needed an adult family home and settled on Narrows View Manor in Tacoma, owned by Arlie and Charlene Leno. They relied on the fact that adult homes were licensed by the state Department of Social and Health Services.

McSherry paid $3,500 a month for a bedroom, prepared meals and daily care delivered by a staff of aides. McSherry's daughters had no clue that only weeks earlier, inspectors for DSHS had swept into the home and uncovered 14 safety and health violations. And they had no idea that Arlie Leno harbored a troubling past, one enabled by state regulators.

In 1990, Arlie Leno left his job as a nursing-home administrator and became his own boss, getting a state license to run a Tacoma boarding home with 16 adult residents. He called it Tule Lake Manor. Leno's residents ranged from the bed bound to those with late-stage Alzheimer's disease or Down syndrome. Despite his work experience, Leno got into trouble within a few months of opening Tule Lake Manor.

Inspectors for DSHS cited him for 18 violations including failing to properly train staff, notify family when a resident fell and broke a hip, and obtain medical care for a resident who fell and was injured. Inspectors found that one staffer had lost her nurse's-aide license for "alcohol and drug issues"; another was on probation for a felony assault conviction and, by law, was not allowed to be alone with a vulnerable adult.

In 2000, DSHS revoked Leno's boarding-home license, citing a decade of abuse and neglect and evidence that residents had "suffered actual harm." Between 1990 and 2000, state inspectors had cited Leno with 135 violations. He sold Tule Lake Manor for $422,000.

After Arlie Leno gave up his boarding home in 2000, he began taking a more active role at Narrows View. After that, inspectors cited the home more often for violations including failing to train staff and to screen them for infectious diseases.

In 2002, they declared bankruptcy. They said they netted about $30,000 a year from their business but had $316,000 in mortgage and other debts, including $40,000 in delinquent federal taxes.

More violations piled up at Narrows View Manor: They failed to create a "care plan" for each resident. The care plan is a critical blueprint that tells staff exactly what care each resident requires: what medications to take and when, how often a resident has to be turned to avoid bedsores, what diet to follow, and so on.

Arlie Leno also hired a woman convicted of felony assault to care for the residents. By law, her conviction barred her from working there.

In July 2003, the couple separated and Charlene Leno, then 60, moved out. Their breakup created problems for Arlie Leno as well as for his residents. His wife was listed on the state license as the "provider," meaning she was the owner responsible for overseeing care.

Arlie Leno's solution was to lie repeatedly to inspectors about his wife's whereabouts. For nearly a year, state records show, he told DSHS investigators that his wife was away on vacation or visiting family. DSHS officials finally discovered the deception. Leno had lied at least four times so DSHS fined them a measly $400.

That same year, 2004, Arlie Leno sneaked an extra resident into Narrows View. By law, he was limited to six residents, but he added a seventh, apparently to squeeze out more profits.

During a DSHS inspection in July 2004, Leno told a staffer that he had only six residents, five female and one male. The inspector became suspicious when he spotted a second male resident walk out of the staff bedroom, and asked his identity.

In another case, a resident fell on the bathroom floor and broke her leg but the caregiver refused to call an ambulance. "We don't do that here," DSHS records recount the caregiver as saying. "We call the family to take them." The injured woman's family wasn't called until nearly three hours after she fell, records show.

Again, DSHS settled for modest fines.

All through this time, McSherry's daughters and other family members visited her nearly every day at Narrows View; daughter Janice McDonald, who worked at a hospital nearby, would stop in after work. "One might wonder why we didn't see what was going on," Elaine Matsuda would later explain. "There are some things that are so subtle. And what Arlie Leno didn't want us to see is not going to happen while we're there." The McSherry family knew nothing of Leno's serious violations.

In June 2006, McSherry developed a small bedsore on her tailbone. The daughters arranged for a registered nurse to visit the Leno home and treat her wound. Once the wound had sufficiently healed, the nurse showed aides at Narrows View how to treat pressure sores. She told the staff to alert her or McSherry's doctor if the sore flared again.

Within two months, McSherry's pressure sore re-emerged, medical records show. But no one at the home recognized its danger and no one in McSherry's family was told about it, nor were her doctor or nurse. The wound remained untreated for more than a month. Aides did rub an ointment on it each day. But the ointment was not suitable for pressure sores. In fact, records show, the ointment made it worse.

After sitting for a month with a painful festering bedsore, she finally said, "My bottom hurts," McDonald recalled. She undressed her mother, then gasped. "There was a quarter-size hole in the skin. It went to the bone," she said.

A nurse visiting Leno's home at the time examined McSherry's tailbone and was alarmed. It was the worst pressure sore she had seen in 20 years of practice, she later told DSHS investigators. It was a Stage IV ulcer, meaning it had eaten through her skin, muscles and connective tissue, down to the bone.

McSherry was rushed to the emergency room, then admitted to Allenmore Hospital. For nearly a month, doctors unleashed a medical arsenal against the raging infection and the pain. Nothing worked. She died.

Dr. Richard Waltman, who signed her death certificate, said McSherry died of a heart attack brought on by infection from the bedsore. "It was too much for her body to handle," he said.

"My mother died a horrifically painful death. She weighed 80 pounds when she died. They were giving her morphine that would have knocked out a 400-pound football player," Matsuda said. "She still would scream and yell and cry out in pain and delirium from the medication."

DSHS determined that Leno's mistreatment of McSherry did not warrant revoking his license. It required him, for the first time, to post his violations publicly. And it did fine him $3,200: $100 for each of the 32 days that he failed to provide proper care to McSherry the price of one preventable death.

This infuriated Matsuda and her sisters. Since McSherry's death, DSHS found more serious violations at Leno's home. In May 2007, a female resident was found crawling in the middle of a four-lane street in a busy intersection. The woman, who had Alzheimer's disease, ended up in a nearby emergency room with a head wound.

Finally in May 2007, Janice Schurman, a DSHS supervisor, wrote to her superiors that field investigators felt Leno should lose his license. Supervisors overruled her. DSHS supervisors ultimately ruled in favor of Leno, who will be 83 years old this year. He holds a dubious record: No adult-home owner has amassed as many serious violations as Leno has and still remained open for business.

McSherry's daughters were haunted by their mother's neglect. Matsuda contacted Seattle attorney Anthony Shapiro, who determined that Arlie Leno had no major assets and did not carry liability insurance. Shapiro embraced a novel strategy: He filed a civil suit against DSHS under the legal doctrine of "deliberate indifference." He had to prove that DSHS knew that a substantial risk to residents existed at Leno's adult family home and chose to ignore it.

"This was not the only incident in Narrows View's history where pressure ulcers and pressure sores cropped up among patients," Shapiro said. "They had a long history of people having pressure sores and DSHS knew about it and other than noting it, and coming in periodically, the practice at this home really never changed.

DSHS settled with McSherry's family late last year for $565,000. Leno, also named in the suit, reached a confidential settlement with the family.

A Times reporter telephoned a DSHS regional office and, as any member of the public can do, asked about the enforcement history at Arlie Leno's home. A DSHS staffer mischaracterized the bulk of Leno's history of violations as minor infractions and "paperwork problems."

When she came to the 2006 violations regarding McSherry, the staffer noted that a resident had developed a "little pressure ulcer." When asked if the woman died from neglect, the DSHS staffer consulted the enforcement computer once again.

Oh, no, she said. "It doesn't show anything about a death

Clarendon Residential Care Center

Ray Mullman — Sun, 28 Feb 2010 17:02:17 -0500

WLTX.com had a story about residents needing assistance after leaving a nursing home that was closed. Clarendon Residential Care Center in Manning shut its doors recently. Many people from that facility have moved to Sumter's Northwoods, formerly known as Trinity Place. When they arrived, the director said their clothes were in such poor condition they had to be thrown out.

"At least it's warm here," said new resident Robin Garrett.

Garrett is one of several residents thrilled about her recent move from the Manning facility. "It was terrible," said another new resident. Several of those residents often did not have warm water, warm food, or much heat among other problems.

The faith based, non-profit houses low to moderate income seniors 55 years and older. They also serve those with physical and mental disabilities on a case by case basis. Barrineau says their newest residents are badly in need of new clothes.

"Many of them have no one to give them support so many of the residents who came here had very little and what they did have was in very poor condition and had to be discarded," said Barrineau.

The influx of people has also put a strain on their resources.

"We need toiletries. We are clearing our shelves very quickly of toothpaste, toothbrushes, deodorant, razor blades, shampoo, that type of stuff."

"Many of the people we serve are the people our communities would like to forget. They have needs; they're human beings as you and I. They're moms and dads, uncles and aunts that are just not able to meet their needs."

If you want to help call Northwoods at 803.774.5700 or drop off donations at 1267 North Main Street in Sumter.

Kentucky Staffing Reforms

Ray Mullman — Sun, 28 Feb 2010 08:19:39 -0500

Here is a great editorial from the Louisville Courier Journal about the need for nursing home reform and lobbyists' influence.

The real priorities of the General Assembly are on shocking display in the battle over a nursing home reform bill. The measure, House Bill 157, which is intended to set minimum standards for staffing, is similar to laws that exist in 37 states.

But the reform bill's co-sponsor told The Courier-Journal's Laura Ungar that its chances seem dim this session.

Meanwhile, over the past decade the nursing homes' trade group has showered a quarter of a million dollars on Frankfort lawmakers, some of whom are persuaded — surprise — that the reform is unnecessary.

The claim of trade group president Ruby Jo Cummins Lubarsky would be laughable, if it were not so sad. The nursing home bill, she says, is not needed because, “Numbers don't equate to quality. Staffing is very important in a facility, and there is no incentive for a facility to not meet the needs of its residents.”

Ask anyone who has had a friend or relative in a nursing home whether the issue of staffing isn't a major one. Even in the best-run homes, it's not uncommon for aides to be surly, dilatory or lack basic communication skills. And residents, many of whom suffer deep depression, dementia and other conditions, are often incapable of being heard when they complain. The powerful stench of feces and urine often greet the visitor at the door. Residents may lie or sit for hours in wet diapers or on fouled sheets — simply because there is not enough help, or because it's not responsive enough.

Many nursing homes benefit handsomely from Medicare and Medicaid tax dollars. Many are for-profit operations that cut back on staff to pump up the bottom line. Federal regulations are considered inadequate by knowledgeable observers and by all but 13 states.

The elderly in Kentucky deserve better than that. And the legislators holding the bill back should have them on their consciences.

For profits nursing home chains have more deficiences

Ray Mullman — Sat, 27 Feb 2010 08:25:36 -0500

USA Today had a great article on the excessive number of nursing homes that receive taxpayer money but refuse to meet the minimum requirements for quality of care. The requirements are basic and necessary services, and fundamental safety and food standards. Personal hygiene, responding to call bells, fresh foods, hot water, taking vital signs, etc----basic stuff but because of greed and short-staffing one in five of the nation's 15,700 nursing homes have consistently received poor ratings for overall quality.

More than a quarter-million patients live in homes given another set of low scores within the past year, according to data released today by Medicare, which first released the star ratings of the nation's nursing homes in late 2008. The ratings are derived from inspections, complaint investigations and other data collected mostly in 2008 and 2009.

USA TODAY found that all 50 states and the District of Columbia have homes with poor ratings from one year to the next. And dozens of those facilities are the only nursing homes for miles.

Late in the Bush administration, the Centers for Medicare & Medicaid Services began assigning nursing homes one to five stars for quality, staffing and health inspections, as well as an overall score. Nearly all homes that repeatedly received few overall stars — one or two stars — were owned by for-profit corporations, the data show.

"The issue is the owners have to take responsibility for the consequences" of poorly performing homes, says Larry Minnix, CEO of American Association of Homes and Services for the Aging.

The newspaper's analysis found the lowest-rated homes had an average of 14 deficiencies per facility, which can include quality-of-life measures and safety violations.