Nursing Home Neglect

Seventh Circuit Court of Appeals Holds Nursing Home Resident Placed in Chemical Restraints Stated Claim under Federal Civil Rights Law for Alleged Violation of Federal Nursing Home Reform Act

Published on: January 20, 2022 | by Barsumian Armiger

The Seventh Circuit Court of Appeals recently addressed whether a federal district court improperly dismissed a 42 U.S.C. § 1983 (Section 1983) claim premised upon a skilled nursing home resident’s complaint that he was chemically restrained and later transferred and discharged without timely notice in violation of the Federal Nursing Home Reform Act (FNHRA). In Talevski v. Health and Hospital Corporation of Marion County (HHC) et al, Gorgi Talevski, through his wife Ivanka, sued HHC, Valparaiso Care, and American Senior Communities, LLC under Section 1983 for violations of FNHRA, 42 U.S.C. § 1396 et seq.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

Indiana Supreme Court Finds Background Check Company As Non-Signatory to Nursing Home Arbitration Agreement Could Not Enforce Arbitration Against Patient Sexually Abused by Convicted Sexual Criminal and Murderer

Published on: March 17, 2021 | by Barsumian Armiger

Non-signatories to nursing home contracts with arbitration clauses that seek to compel arbitration based upon equitable estoppel must satisfy Indiana’s established elements of equitable estoppel, the Indiana Supreme Court recently held in Doe v. Carmel Operator, LLC. As part of the admission of 77-year-old Jane Doe II (“Jane”) to Carmel Senior Living (“CSL”), an assisted living facility in Carmel, Indiana, her guardian, Jane Doe I (“Guardian”), executed a residency agreement with CSL that contained an arbitration clause requiring claims against it be arbitrated. After Jane was sexually abused by a CSL employee, Guardian filed a lawsuit against CSL, CLS’s management company, the employee, and Certiphi Screening (“Certiphi”), a company hired by CSL to conduct background checks of CSL employees. Guardian alleged CSL and Certiphi were negligent in failing to discover the employee’s prior felony convictions for a sex crime and murder.

Indiana has a strong public policy in favor of arbitration agreements. Such agreements, however, can be invalidated with generally applicable contract defenses, such as unconscionability. Even though parties may agree to have the Federal Arbitration Act apply to an agreement, state contract law governs the scope of the agreement, including who is bound by it. Typically, only contracting parties or those in privity with contracting parties can enforce arbitration agreements. However, if the parties want to allow non-signatories to enforce such agreements, the parties can state their intent in the agreement, thereby making the non-signatory a third-party beneficiary. Non-signatories can also enforce arbitration agreements under the doctrine of equitable estoppel.

Here, CSL and Certiphi both moved to compel arbitration of the claims arising out of the resident’s alleged nursing home negligence, which Guardian opposed, arguing the arbitration agreement was unconscionable and, as to Certiphi, could not be enforced by Certiphi because Certiphi was not a party to the agreement. The trial court granted the motions to compel filed by CSL and Certiphi, and Guardian appealed. The Indiana Court of Appeals affirmed, finding the agreement was not unconscionable, and, as to Certiphi, Guardian was equitably estopped from asserting Certiphi could not enforce the arbitration agreement because Guardian was alleging substantially interdependent and concerted misconduct by both CSL and Certiphi. In so holding, the Indiana Court of Appeals relied upon its prior split-panel decision in German American Financial Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. App. 2012) in which the Court adopted an alternative theory of equitable estoppel for arbitration agreements allowing non-signatories to enforce arbitration agreements if they could show either (1) reliance by a signatory on the agreement in asserting a claim against a non-signatory, or (2) allegations of substantially interdependent and concerted misconduct by both a signatory and non-signatory to the agreement.

Kentucky Supreme Court Rules Nursing Home’s Independent Nurse Consultant Reviewer’s Critical Analysis of Resident’s Care is Shielded by Federal Quality Assurance Privilege

Published on: February 26, 2021 | by Barsumian Armiger

Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky. After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died. McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.

During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B). The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987. To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee. The FQAP protects the records of the committee from disclosure.

At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care. Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data. These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI. The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.

Indiana Court of Appeals Finds Son of Deceased Mother Limited to Damages Cap Under Indiana’s Wrongful Death Statute

Published on: October 23, 2020 | by Barsumian Armiger

Depending on the circumstances surrounding a fatality caused by another’s negligence, Indiana statutes may place limits on the monetary value of the human life taken when it comes to compensating the remaining family members for their loss. Known as a “damage cap,” such limits may be triggered by the status of the negligent actor being a qualified healthcare provider or a governmental entity. Another damage cap depends on the dependency of those family members left behind, which is the topic of today’s blog.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

Indiana Court of Appeals Instructs Trial Court to Grant Patient’s Estate’s Motion to Compel Arbitration in Medical Malpractice Nursing Home Case

Published on: September 18, 2020 | by Barsumian Armiger

The Indiana Court of Appeals recently held a nursing home, qualified under the Indiana Medical Malpractice Act, had relinquished its right to protections afforded by the Act to medical malpractice defendants by contracting for claims against it to be resolved exclusively by arbitration, such that the estate of a nursing home resident could compel arbitration in lieu of presenting the case before a medical review panel.

The Estate of Sandra King (“the Estate”) filed a medical malpractice lawsuit against Aperion Care d/b/a Aperion Care Tolleston Park (“Aperion”) relating to nursing care provided to King while she was a resident at Aperion. As part of her admission to the nursing home, King signed Aperion’s Arbitration Agreement, which provided all claims against Aperion were to be resolved exclusively by arbitration. After filing a lawsuit and conducting discovery, and prior to tendering its medical review panel submission, the Estate moved to compel arbitration based upon the Arbitration Agreement. After a hearing, the trial court denied the Estate’s motion to compel, finding the case “not yet ripe for arbitration,” as the case had not yet been presented to a medical review panel.

Under the Indiana Medical Malpractice Act, qualified healthcare providers (i.e., those who have filed proof of financial responsibility and paid the applicable surcharge, Ind. Code § 34-18-3-2), get numerous protections, including a requirement that plaintiffs first present their claims before a medical review panel prior to prosecuting them in court. Ind. Code § 34-18-8-4. Medical review panels are comprised of one attorney chairperson and three healthcare providers. Ind. Code § 34-18-10-3. Once the panel is formed, the parties tender medical review panel submissions consisting of evidence to be considered by the panel. Ind. Code § 34-18-10-17. The panel then issues an opinion on whether the defendants complied with the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. Ind. Code § 34-18-10-22.

“Medical Malpractice” and “Medical Negligence” Distinction without Difference in Indiana

Published on: January 21, 2019 | by Barsumian Armiger

In finding in favor of several healthcare providers in a medical malpractice case in Indiana, the Indiana Court of Appeals in Speaks v. Vishnuvardhan Rao reviewed numerous concepts applicable to medical malpractice claims in Indiana.

Medical malpractice claimants in Indiana must prove that a healthcare provider owed the patient a duty, the healthcare provider breached that duty, and the breach proximately caused injury to the patient. Healthcare providers are not obligated to provide perfect care, but they must exercise the degree of skill and care ordinarily possessed and exercised by a reasonably skillful and careful healthcare provider under the same or similar circumstances.

The patient in this case filed a lawsuit against several healthcare providers claiming her healthcare providers committed malpractice by administering the wrong medication, failing to correctly complete a DVT risk form, and failing to properly monitor and flush her IV.

Medical Review Panels Unconstitutional in Kentucky, Constitutional in Indiana

Published on: November 19, 2018 | by Barsumian Armiger

Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice. Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

Indiana’s Limited Medical Malpractice Fraudulent Concealment Doctrine

Published on: October 8, 2018 | by Barsumian Armiger

The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.

Overmedication In Nursing Home

Published on: March 20, 2018 | by Barsumian Armiger

It’s a fear that many people have – that they or their parents will end up in a nursing home unable to care for themselves and becoming overmedicated. The fact is that many nursing home residents are suffering from Alzheimer’s or some form of dementia which can make them aggressive or anxious. That makes them difficult to care for. And for nursing home workers who are overworked in a facility that is understaffed, the solution, unfortunately, is to medicate such individuals. This often leads to overmedication. An estimated 179,000 people living in nursing homes receive antipsychotic drugs each week although they have no mental illness for which such drugs are intended.

Signs of Overmedication

It is difficult enough to make the decision to send your loved one to a nursing facility. But, sometimes that is the only option and is required to ensure the safety of your loved one. A nursing home should be a place where residents receive adequate care while being kept safe. However, some residents go downhill fast once they’ve entered a nursing home. This is sometimes due to the fact that they are being overmedicated. If you have a loved one who resides in a nursing home, then you should look out for the following signs:

Has My Loved One Been the Victim of Nursing Home Abuse or Neglect?

Published on: December 21, 2016 | by Barsumian Armiger

The Nursing Home Investigation and Selection Process. Entrusting a loved one, such as a mother, father, sister or brother, to the care of a nursing home is one of the most difficult decisions many of us will ever make. In spite of a long, thorough investigation into suitable nursing and rest homes and assisted living centers, it is often difficult to get a true feel for the environment when you leave a loved one in the care of strangers. Often times it is not possible to witness the actual care being given so it is important to notice the overall state of care such as cleanliness, the quality and temperature of food items, how medications are delivered, changes in personality of the loved one, and missing personal items. When you arrive at the facility are the staff actually engaged in helping residents or are they out on the front porch in groups smoking, texting and checking social media on their cell phones? Has the rest home, nursing or assisted living facility changed ownership or administration often? Have medical directors changed or are they rarely or never present?What have State nursing home survey inspection findings been for the home?

Keeping Tabs on Conditions and Care

While it is likely impossible to meet the ideal conditions we would like to see for a loved one, some nursing, rest and assisted living homes fall well short of meeting even the most minimum standard of care. Sometimes failure to ensure proper staffing levels means the routine care of a loved one suffers. Pay careful attention to your loved one’s mood changes. Do they seem anxious or concerned when they see particular staff? Are you seeing a lot of different faces and are those faces less friendly than when the stay began? Do you hear yelling or exasperation from staff as you walk by other rooms, administration or the nursing station? Does your loved one exhibit signs of dehydration such as dry eyes, flaky skin or chapped lips? When you arrive, do they have a full or empty drinking cup in their room and within their reach and are they eating or refusing to eat reminiscing about home-cooked meals? Are they losing weight or exhibiting skin changes? Do you notice flies or uncleaned restroom facilities? If they had bedsores or pressure ulcers upon admission, have these gotten better or worse? If they were continent when they started are they now incontinent? Or, if they were incontinent when they started at the facility and were on a scheduled toileting program, has the facility now suggested they are continent to avoid the burden of scheduled toileting? Has your loved one fallen from a wheelchair, bed or been found wandering outside the facility?