The latest tort reform measure, H.R. 1215, the Protecting Access to Care Act of 2017, would place caps on medical malpractice damages, limit attorney fees, and modify statutes of limitations. Among other changes to current law, non-economic damages in medical malpractice lawsuits would be limited to $250,000 – and juries would not be informed of this cap on damages. H.R. 1215 would apply to health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through subsidies or tax benefits.

H.R. 1215 would preempt state laws governing health care litigation in several areas, including statutes of limitation, joint and several liability, product liability, and attorney contingency fees.

Proponents of the bill claim that the bill would lower medical liability insurance premiums, and by extension, reduce the incidence of so-called “defensive” medical treatments and lower costs associated with federal health care programs such as Medicaid.

Continue Reading Will Tort Reform Affect Nursing Home Care?

A caregiver may face the overwhelming decision to place a loved one in a nursing home after a sudden event such as a fall or a stroke. Sometimes, there is more time to prepare, as in cases where the loved one suffers from a chronic or debilitating disease, including diseases where the patient is expected to deteriorate over time.

Once a loved one is safely tucked into a nursing home bed, a caregiver may feel a sense of relief. However, nursing home staff members are notoriously overburdened with the everyday tasks involved in caring for their elderly patients. Nonetheless, it is the responsibility of nursing home staff and management to ensure that each resident receives the care he or she needs.

Continue Reading What Are the Signs of Nursing Home Neglect?

In its five-part “Failing the Frail” series, a PennLive investigation reveals the 18 most understaffed Pennsylvania nursing homes. The series includes an interactive map to search for staffing levels of individual nursing homes.

Based on PennLive’s analysis of 559 facilities, nursing homes in Pennsylvania provided residents with an average of only 3.6 hours of care per day, well below the minimum 4.1 hours recommended for safe care, although within Pennsylvania’s minimum staffing requirement of 2.7 hours of care per day. The analysis found 477 homes, or 85 percent, provided less than the recommended level. The analysis further found that 183 homes, or 33 percent, were dangerously understaffed because they provided less than 3.5 hours of care per day and, less than 32 minutes of care from registered nurses.

Continue Reading Pennsylvania Nursing Homes Often Understaffed

Special kudos to the Reading Eagle on its recent series on nursing homes – in particular the editorial We Must Demand Better from Nursing Homes, Regulators, published on December 11, 2016. For those of us who work hard to hold nursing home corporations accountable when seniors are neglected, abused, seriously injured, or die, this series of articles is a vindication.

Continue Reading Newspaper Highlights Problems with PA Nursing Homes

During much of the 20th century, hospitals did not have a duty to treat patients who entered emergency departments. Without any given reason, they could refuse to treat certain patients. The practice of “patient dumping” arose from that lack of duty.

Patient dumping refers to situations when hospitals deny emergency medical screening and stabilization services. It also refers to instances when a hospital transfers an individual to another hospital after discovering that the individual does not have insurance or a means to pay for treatment.

To correct that wrong and in an effort to ensure that individuals received needed emergency care, in 1986 Congress enacted EMTALA, which was designed to protect all individuals seeking evaluation or treatment at hospital emergency departments that participate in Medicare. Continue Reading Patient Dumping and the Emergency Medical Treatment and Labor Act (EMTALA)

I was recently speaking with someone about a woman who worked for a non-profit nursing home for many years. She liked it there and the facility provided good care. Then the facility was sold to a for-profit corporation. Overnight, staff hours were cut, pay was cut, and care declined. The person I was speaking with could not believe this could happen–I was not surprised as sadly I’ve seen this occur many times.

If an administrator at a non-profit tells her board of directors she made a little money that year and gave great care, she’s applauded. However, if that same administrator tells the same thing to a for-profit board, she’s getting fired. The replacement knows that staffing is the biggest expense and that’s where you will see the cuts.

Continue Reading Several Philly Area Non-Profit Nursing Homes Sold to For-Profit Companies

Often, many of the problems that occur in nursing homes are a direct result of terribly insufficient staffing. This knowledge is born out in studies that show a direct correlation between staffing ratios and quality of care.

Despite all of this clear evidence, many facilities only meet the bare minimum hours required under state regulation. Some aides have told me the ratio on their day shift at a nursing home was as high as 1 aide to 14 residents. For those unaware, aides are the people who feed, bathe, and transfer residents, and they are also responsible turning and repositioning any residents who are at risk for developing bed sores. Having only 1 person in charge of caring for 14 patients at the same time is a catastrophe waiting to happen.

Continue Reading New Jersey Looks to Improve Staffing Ratios

Recently, the August 2015 Special Focus Facility List was published by the Centers for Medicare and Medicaid Services (CMS). The CMS regularly visits nursing homes to assure that they are administering the quality of care that Medicare and Medicaid require. With these regular visits, the CMS will identify any deficiencies in the quality of care being provided, as well as if the facility is meeting safety requirements. The CMS will also examine any previous noted deficiencies and how promptly they were or were not handled. These criteria will determine the facility’s overall survey from the CMS.

Additionally, if serious problems are left unchecked in these facilities, the CMS can opt to terminate the special focus facility’s participation in Medicare and Medicaid.

Once the CMS’ “survey” teams gather their data from the facilities, this is submitted to a master list, The Special Focus Facility List. This list includes all facilities with a history of care problems and/or poor surveys, and is updated monthly by the CMS. Every special focus facility must be visited by a CMS survey team at least twice a year.

If you would like to see the whole list, please visit the CMS website.

It is also important to note that if you go to Medicare’s Nursing Home Compare website and look up any individual nursing home, you will immediately be able to tell if that facility is on the Special Focus Facility List. Any facility on the list will have a yellow triangle with an exclamation point next to its name. Additionally, you can use the website to see other ratings for the facility, including health inspections, staffing and quality measures. At the moment, there are several nursing homes in Pennsylvania and New Jersey on the CMS’s most current Special Focus Facility List.

If you have a loved one in a facility on the Special Focus Facility list, you can go to the administration and demand they tell you why the facility on the list and what they plan to do to improve the quality of care provided to be removed from the list. You do not get on this list when you are meeting even minimal standards.

When deciding whether to place a loved-one into a nursing home, families attempt to determine whether the nursing home is capable of providing the necessary quality care. Most families visit the nursing home, as well as check the U.S. government’s Nursing Home Compare tool at Medicare.gov.

Despite their efforts, some nursing homes have purposefully misrepresented their ability to care for its residents.

Overstating Staffing Levels

According to the latest updated report from the Center for Public Integrity, over 80% of nursing homes have consistently overstated their staffing levels to Nursing Home Compare in an apparent bid for higher rankings at the site. The report explained that staffing overstatements occurred for all types of nursing positions, but were particularly high for registered nurses—the most skilled and highest paid workers.

Our nursing home negligence and abuse attorneys have long since understood that the amount of care, especially by registered nurses, is strongly connected to the quality of care provided to nursing home residents. For example, my associate Eric D. Dakhari, Esq. explained in a recent blog article that for understaffed facilities, evidence shows increased incidents of—among other critical issues—pressure ulcers, catheterized patients, urinary tract infections; as well as an increased likelihood of death.

As a nursing home lawyer, I have too frequently litigated nursing home negligence and abuse cases where the low levels of care were associated with a resident’s severe injury or death.

Nursing Home Compare: The Goal

The government website’s goal is to assist families in evaluating a nursing home’s ability to provide adequate “skilled-nursing” care, which is care given when you need skilled nursing or rehabilitation staff to manage, observe, or evaluate your care.

A Flawed Self-Reporting Process

The Nursing Home Compare website explains that each nursing home must self-report its staffing hours to its state survey agency and that the reported staffing hours reflect the staffing of RNs, LPNs, CNAs, and PTs from a two-week period just before the state inspection.

The government website displays the self-reported nursing home staffing hours as the number of staff hours per resident per day, which is the total number of hours worked divided by the total number of residents.

It is important to note that the website does not necessarily show the number of nursing staff present at any given time, or reflect the amount of care given to any one resident.

Our nursing home attorneys know that many nursing homes commit additional human and financial resources to prepare for the state inspections, and as a result, the self-reported staffing levels do not accurately reflect the typical staffing levels in the nursing home. This is particularly important because some nursing homes must provide more nursing staff due to the conditions of their residents, and other factors.

Recommendation to Families

Our nursing home negligence and abuse lawyers understand the difficulty that families face in selecting a nursing home based on false data. My partner, has previously recommended that families ask the nursing home about its CNA-to-Residents ratio. He explained that determining that ratio—as opposed to the RN or LPN ratio—is important because the CNAs are the frontline workers that provide the majority of the hands-on-care to residents.

If you or someone you know has been involved in a nursing home negligence or abuse incident, I recommend that you consult with an attorney immediately to discuss your rights.

In New Jersey, Assisted Living encompasses providing various coordinated supportive personal and health services, available 24 hours per day, to residents who need those services. Its purpose is to promote resident self-direction and participation in decisions, with an emphasis on independence, individuality, privacy, dignity, and homelike surroundings.

And thus, corporations that operate Assisted Living Facilities (ALF) must provide, at a minimum, services for:

  • Nursing
  • Recreation
  • Medical Transportation
  • Personal Care
  • Social Work
  • Activities
  • Housekeeping
  • Dining
  • Pharmacy

Indeed, ALFs and our nursing-home lawyers know that potential residents have the right to live in an ALF that does not admit more residents than it can safely accommodate while providing those services and other care. And for persons who currently live in an ALF, the corporations operating the ALFs know that those residents have the right to receive care and services at a level that addresses the residents’ changing physical and psychosocial status.

Continue Reading Assisted Living Facilities Must Not Expose Residents to Unnecessary Risks of Harm