Chicago Medical Malpractice Lawyer Blog

Hurley, McKenna & Mertz of Chicago handles cases against doctors and nursing homes for abuse, neglect, and wrongful deaths that occur in these facilities. The following story discusses one of the most serious recurring problems plaguing nursing home care – the fact that even when facilities are cited, doctors remain fully licensed and undisciplined.

An unfortunate example of such a situation involves Delores Fleming. Her family tried to care for her at home, but eventually Alzheimer’s Disease made it impossible for them to adequately care for her. Reluctantly, they placed her in a nursing home near Decatur, Illinois. Upon entrance, she was deemed “moderately impaired” when she scored a 23 out of 30 on a mental test. However, after a series of crying spells and several instances of wandering away, “her doctor prescribed two antipsychotic drugs, even though she was not psychotic…[and] doubled the dosage of one medication no fewer than four times, putting her above the recommended limit” (Sam Roe, Chicago Tribune, 10/28). Ultimately, a neurologist was called in after her family complained when she scored a zero on a subsequent mental test, and the nursing home was cited for misusing psychotic drugs.

However, as is often the case, the prescribing physician received no citation. Therefore, "There's no downside for the physicians" who order inappropriate psychotropics, said Robert Hedges, a former regulator with the Illinois Department of Public Health who now co-owns five nursing facilities. As a lawyer who specializes in personal injury and medical malpractice cases, and has extensive experience in this area of litigation, I find this story extremely disappointing. It seems unwise and counter productive for citations to be directed only at facilities and not physicians for physicians wrongful prescribing of psychotic medications.

Hurley, McKenna & Mertz of Chicago represents many clients that have been harmed by substandard medical care, focusing primarily in nursing home, obstetrics and gynecology, and wrongful death cases. As Chicago attorneys with experience with nursing home neglect and abuses cases, we find the issue of substandard medical care to be a critically important societal issue.

Medical studies from prior decades are now resurfacing in the important health care debate. Jack Wennberg began an ambitious study in the 1970’s collecting and comparing data on medical procedures all over the state of Main (NPR, 10/8). Initially, he was taken aback by the striking differences in medical care across the state. After the populations had been compared for health statistics and controlled for age, the differences were staggering. For example, in two neighboring communities, 75% of children in one community had their tonsils removed, while just 20% in the other community had their tonsils removed.

Eventually, they convinced many doctors in all practice areas to convene and discuss the differences on regular intervals. Their findings indicated many contributing factors. First, doctors were affected by the fear of being sued. Second, local medical culture had a profound influence. People in small town Vermont assumed that a child with a 102 fever would go to the hospital, as had been the practice for years. Doctors continued to act consistently with the local medical culture even though they knew that children were put at higher risk of illness by being sent to the hospital and being in the proximity of other sick patients. Third, the fee for service payment system inevitably induced doctors to perform more procedures. If you structure payment on quantity, then quality of service may suffer as the expense of trying to see as many possible patients. Further complications of insurance system hassles also induce doctors to perform more procedures in hopes of collecting more from insurance companies. Furthermore, in counties with extremely high incidence of procedures, the outcomes were undeniably poorer, which is likely a reflection of the fact that the patients were not optimum surgery candidates.

Many important factors affecting doctor behavior addressed in previous studies should be revisited and addressed in policy initiatives.

The Chicago Tribune reported attorney general Lisa Madigan called for nursing home reform in Illinois and instructed nursing homes to “beef up inspections and improve record keeping of criminal activity,” in order to protect elderly and disabled citizens from mentally ill felons who live in the same facilities (David Jackson and Gary Marx, 10/8). She called for the nursing homes to work with the state police to perform an immediate review of the criminal history of every felon currently residing in a nursing home so that they can be appropriately monitored. Despite being required by law, these reviews are the target of reform because they have been inadequate by overlooking or downplaying violent crimes.

Madigan, who supported the 2006 state law requiring criminal background screenings for all new nursing home admissions, is encouraging the health department and state police to inspect problematic nursing homes, and is further urging the health department to “hault the operations of facilities that fail to comply with patient protection laws.” Governor Pat Quinn’s office announced the first meeting of the new Nursing Home Safety Task Force, which was formed in response to the Tribune Series, Compromised Care, for Thursday October 8, 2009.

As a nursing home abuse and neglect lawyer, I am pleased to see the actions taken by the Illinois government to address the widespread problem of patient safety. Adequate background checks prior to nursing home admissions are critical to maintaining patient safety, and as such should be monitored thoroughly.

As a Chicago Nursing Home lawyer I do not find this verdict surprising:

In the largest personal injury verdict in state history, a New Mexico jury awarded $54 million to the family of a woman who bled to death in her nursing home. The plaintiff's lawyer, Carl Bettinger of Albuquerque, was already well-acquainted with the defendant, having previously litigated more than half a dozen similar negligence trials against Manor Care, a nursing home chain based in Toledo, Ohio. After a two-and-a-half week trial, jurors found Manor Care liable for negligence and attempting to cover up the cause of death of 78-year-old resident Barbara Barber.”

Justin Rebello, Lawyers USA 8/03/07

As a Chicago Medical Malpractice lawyer I have handled hundreds of nursing home cases over 25 years. This story from Kentucky is a little too typical:

Loren Richards, an 84-year-old Kentucky farmer, spent his last days bedridden and in intense pain. A bowel impaction that went neglected and untreated for several days finally caused a fatal heart attack, after a morning spent screaming for a doctor who never came. His family didn't know the truth of his terrible demise at the Beverly Health and Rehabilitation nursing home in Frankfort until weeks after he'd been buried. Daughter Jan Richards was at a church service when a man in front of her, who drove the city's handicapped van and had transported local nursing home residents, turned around to offer his condolences. It was so sad, he said, that her father had to die 'suffering like that and nothing was done for him.' Suffering? Nothing done? Richards, her brother Phil and sister Wanda Delaplane, had been told by the nursing home staff that his passing had been perfunctory. He'd had a history of heart problems and a stroke, after all. They believed his care had been good throughout his five years at the home, although after recent staff cuts, the family had noticed he wasn't always as clean as they'd hoped."

Andrea Billups & Fran Lostys, Reader's Digest, December 2006
http://www.rd.com/content/openContent.do?contentId=31303

Whether you have a nursing home case against an Illinois company or a national company you must be sure to identify and sue the proper entity. Defendant corporations are becoming much more adept at the corporate shell game.

"In the last five years, most of the nation's large nursing home chains have undergone major corporate restructuring. The goal: separating the chains' real property and assets from their operations to avoid financial liability for legal claims, including those alleging negligent care or abuse of residents. States like Arizona, California, Florida, and Texas-which have significant elderly populations-have been affected most by this trend, but homes in other states are following suit. Nursing home corporate structures used to be different. In the 1990s, most of the national nursing home chains operated in a similar manner. These for-profit chains included Beverly Enterprises, Mariner, Extendicare, HCR Manorcare, Kindred, Genesis, and LifeCare. Most of them divided up the country and each state into regions, and each region contained a handful of nursing homes."

Nathan P. Carter, TRIAL Magazine, November 2006
http://www.atla.org/publications/trial/0611/carter1.aspx

In Chicago and throughout Illinois it is necessary to identify the correct corporate structure when bringing suit against a nursing home. A recent article in Trial Magazine is helpful on this subject:

After several major chains were hit with Medicare fraud investigations or were forced to file for bankruptcy protection, the business model began to change. Virtually all of these national chains have undergone extremely complex business transactions in which they were sold, merged, or parceled out into different entities—or otherwise drastically changed.

Here are some sources of information that will help identify the correct entity:

* state Medicaid cost reports/home office reports and federal Medicare contracts
* the secretary of state’s Web site and uniform business reports that include names of LLC members or corporate officers/directors
* state licensee files, including applications to the state, change-of-ownership documents, and other related documentation
* for a publicly traded corporation, Securities and Exchange Commission filings and reports, 10ks or annual reports, statements of corporate officers, and stock values
* the facility’s admission packet, brochures, pamphlets, and other promotional literature
* Google searches on the nursing home facility and the entities that own or manage it (Searching all the names that appear in the Medicaid cost reports is a great starting point.)
* copies of court files, especially depositions, from other cases involving the facility you are investigating, as well as other facilities owned or managed by the same entities
* conversations with other attorneys who have previously brought claims against the facility
* conversations with former employees of the facility (if your state allows)
* the local property appraiser’s office or Web site regarding the facility site

* copies of the master lease and any subleases
* copies of all management agreements, ancillary service contracts, and financial services agreements between the facility and all related entities
* all the facility’s budget information, including the annual budget, monthly reports, budget variance requests, per-patient-day (PPD) data, and the staffing budget
* the governing body documentation and information (According to 42 C.F.R. §483.75(d) (2006), all facilities must have a governing body to establish and implement policies and appoint the administrator.)
* copies of bank documentation, promissory notes, loan applications, guarantees, and any other documents that relate to the capital that was borrowed—to set up the facility and its sister facilities—as part of the entire operation’s management
* all e-mails between any and all staff in the facility and any outside entity or person

Now, it is difficult, if not impossible, to identify the entity that owns, operates, and controls any skilled nursing facility. A nursing home and its literature no longer bear the name of its owner and operator. The business model is focused on shielding the true corporate owners from liability or responsibility for their residents’ injuries.

We have handled numerous cases of sexual assault and abuse in nursing homes. Some of the cases involve attacks by other residents of the home and some involve attacks by employees. This type of injury is far more common than people realize and can be devastating to nursing home residents and their families.