Civil Rights Violations in Nursing Homes are Now Recognized Under 42 U.S.C. § 1983

            According to a recent article posted on Law.com, the estate of Melvinteen Daniels brought a suit against the nursing home, The Kane Center in Allegheny County, Pa., for Mrs. Daniels fatal case of sepsis caused by neglect, malnourishment and bed sores.  The lawsuit brought on Mrs. Daniels behalf had the cause of action for violating her civil rights by breaching a duty to ensure quality care under the Federal Nursing Home Reform Amendments (FNHRA).  The 3rd U.S. Circuit Court of Appeals ruled that residents of county-run nursing homes could bring lawsuits for civil rights violations under FNHRA section 1983, which challenges the quality of the resident’s treatment. 

Prior to FNHRA being passed in 1987, there were only two sanctions against nursing homes for noncompliance. One sanction was the secretary of Health and Human Services or the states themselves could decertify the facility and terminate the nursing home’s eligibility to receive Medicaid reimbursements.  The other sanction was if noncompliance was not an immediate and serious threat to the residents’ health and safety, the secretary or the states could deny payment for new admissions for up to 11 months.  If the government did not catch and enforce the sanctioned actions, there was not much deterrence for Nursing Facilities and protection for the elderly.  Private lawsuits became possible under FNHRA, and in addition to sanctions, nursing facilities are held accountable and deterred from abusing and neglecting their residents.  As courts breathe new interpretations in FNHRA, lawyers looking to protect the elderly have more ammunition to hold nursing facilities accountable for their abuse and neglect of residents.

            Now, victims (or their families) of elder abuse and neglect from county-run nursing facilities can bring a new cause of action which alleges violations of the victim’s civil rights.  The violation lies in the fact that “nursing homes are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities.”  Abuse and neglect can now be treated as a violation of civil rights, more causes of actions can be brought to help lawsuits to hold nursing homes accountable.  Also, hopefully the fear of more causes of action and increased damages exposure will deter nursing facilities from abusing or neglecting their elderly residents. 

The York Law Firm believes the new cause of action for violations of civil rights is a positive step in helping regulate the Nursing Home Industry.  Since one of our specializations is Nursing Home Abuse and Neglect, the new ruling allows our firm to expand our work in this field of law.  We look forward to applying this new ruling to our cases involving county-run Nursing Homes and Assisted Living facilities who have neglected and abused residents. 

York Law Corporation

Sacramento, California

www.yorklawcorp.com

Can the Consumer Ever Win?

             Somewhere in your cell phone or credit card contract, buried in the fine print is a mandatory arbitration clause which waives your right to a jury trial and instead binds you to arbitration if there is ever a dispute.  You may not have known that you have waived your right to hold a corporation accountable through a jury trial and instead agreed to arbitration because you did not read the lengthy contract.  Usually these sneaky arbitration clauses are buried somewhere in a tiny paragraph in the middle of the massive contract.  Now, these arbitration clauses are being quietly added to nursing home contracts.  The Nursing Home Industry is now including these pre-dispute mandatory arbitration clauses to their admission contracts and you need to know what you can do to protect your loved ones. 

              As you are making the difficult decision of putting a loved one into a nursing home, you could also inadvertently sign away you right to go to court to for neglect or abuse of your loved one.  With the deadly arbitration clause, if there is the death or injury of a loved one, you would be required to fight your dispute in a secret and binding arbitration process that favors the Nursing Home Industry.  When you signed the admission agreement with the nursing home you agreed to have any dispute heard by an arbitrator chosen by the nursing home, to have the proceedings held in private, and for the decision to be unrecorded.  (This has only changed in California which now requires decisions by arbitrators to be recorded.  However, arbitrations still favor the nursing homes, not the patient or their family). 

            If you bring a matter before an arbitrator or panel of arbitrators you are most likely going to lose.  Since these private arbitrators are repeatedly hired by the Nursing Home Industry, it is highly likely that they are going to rule in favor of the nursing home in order to get hired again.  Nursing homes and other large companies are going to hire arbitrators that they know to favor their side.  A recent NPR broadcast highlighted a study claiming that 94% of consumers lost in arbitration and those arbitrators that ruled in favor of the consumer were typically not re-hired by the company for future arbitrations.  This statistic is not wholly for nursing homes but gives a good indication of ones chances of prevailing in an arbitration proceeding. 

           WARNING:  Be aware that you do NOT have to sign any nursing home admission agreement!  The nursing home cannot refuse to admit your loved one into their facility just because you do not sign the contract that contains an arbitration agreement.  By no means are you required to accept an arbitration clause in a nursing home contract.  What should you do if you have put a family member in a nursing home?  If you do not want to enter into an arbitration agreement, carefully read the nursing home’s Admission Agreement and feel free to cross out or decline the arbitration clause.  Please understand that you do not have to initial or approve of any arbitration clause contained in a nursing home Admission Agreement.  You can protect your right to a jury trial should the nursing home neglect or abuse your loved one. 

            The York Law Corporation is very aware of the fact that many companies are taking advantage of consumers by attempting to sneak in arbitration clauses into their agreements.  We are experienced in nursing home admissions agreements.  We are familiar with nursing homes trying to include mandatory, binding arbitration clauses to hold secret and unrecorded sessions that are inherently unfair to the consumer.  We believe that cases of elder neglect need to be heard by a jury and be put on public record.

If you are worried about entering into an arbitration agreement and a resident of Northern California, the York Law Corporation will review nursing home admission agreements for FREE to ensure that you do not sign away your right to go to court.

York Law Corporation

Sacramento, California

www.yorklawcorp.com

Inadequate Care leading to Two Elderly Residents Dying

In a Los Angeles Time article on June 11, 2009, it was reported that State officials recently fined two nursing homes in Orange County for providing inadequate care that led to the deaths of two residents. 

In late November 2008, an 82 year old woman was admitted to the Alamitos West Health Care Center in Los Alamitos, CA.  When she was admitted, a doctor ordered that her fluid intake be monitored by staff at every shift.  The registered dietitian on staff could not prove that the nurses at the facility had made sure the woman was drinking enough fluids.  Review of patient’s fluid intake forms showed blank spaces or illegible writing.  On December 19th, the woman was hospitalized for a urinary tract infection, dehydration and an “altered mental status.”  The woman died six days later on Christmas day from her symptoms. The California Department of Public Health found that the nursing home failed to follow proper procedures which caused the patient to suffer dehydration and acute kidney failure and fined the facility $100,000.  According to Betsy Hite, the facility’s spokeswoman, the nursing home plans to appeal the fine.

On March 2, 2009, a male resident at the Huntington Valley Healthcare Center in Huntington Beach, CA died because the registered nurse supervisor did not call 911 or administer CPR because she thought the patient had a DNR (Do Not Resuscitate).  According to State officials, a licensed vocational nurse on staff called a family member to inform them that the man had died.  The family member told the nurse to hang up and call 911 because the patient’s medical record included an advance directive form from family which marked the option “I DO WANT C.P.R.” in an emergency situation.  When paramedics arrived, they found the man in his bed with no heart beat, a sheet over him, and no signs of C.P.R. being administered. The California Department of Public Health fined the facility $80,000.  At this time, the nursing home does not know if they will appeal the fine.

            The California Department of Public Health has many rules and regulations that nursing facilities must follow.  However, it is incredibly easy for bad nursing home conduct to slip by the State.  In many instances, the State does not do an investigation at all.  Often times, the State does their investigation years after the elderly person has already died.  When the State issues a citation, the nursing home will usually appeal the citation or try to settle for less.  Which then begs the question:  does nursing home neglect and abuse ever really stop?

           These two facilities have obtained a Class AA violation from the California Department of Public Health.  These violations are the most severe and are issued when a resident’s death can be directly and officially attributed to the responsibility of the facility, and carries fines between $25,000 and $100,000.

             The York Law Firm is experienced in prosecuting elder neglect cases involving the atrocities that many nursing homes commit on a regular basis when they fail to take proper care of our elderly residents.  One of our specializations is Nursing Home Abuse and Neglect.  We have successfully applied Federal and State laws to protect those living in Nursing Homes and Assisted Living Facilities from being victims of neglect and abuse.

York Law Corporation

Sacramento, California

www.yorklawcorp.com

http://www.yorklawcorp.com/practice/nursing-home-abuse/