This article originally appeared in the July 10, 2006 issues of the Legal Intelligencer and Pennsylvania Law Weekly publications.

By Lawrance Spiller Kimmel

             Nursing home neglect is a hot topic in health care law that has recently spawned significant litigation in the Delaware Valley. High-profile media coverage of these cases has resulted in a spotlight on nursing homes, and grabbed the attention of social agencies and legislators seeking better treatment for the sick and elderly. This legislation in the Delaware Valley will mean changes in the ways nursing homes conduct business and are monitored in the future. It also means a stream of new cases to many plaintiffs' firms that have developed a niche in this area. Verdicts in the $1M to $25M range have been awarded in cases throughout the United States, including some nearing the $100M mark.

             Seniors are one of the fastest-growing population segments in the United States. As a result of this population shift, many more elderly Americans have become residents of nursing homes than ever before. In a recent article, USA Today estimated that half of nursing home residents are not being treated properly for their pain. Senior citizens face a myriad of diseases that cannot always be treated, cured, or prevented. However, neglect and abuse can always be prevented. The causes of neglect are often a result of unqualified staff, employees with a history of violence, inadequate staffing, resident isolation, and residents who are reluctant to report abuse in fear of embarrassment and retribution.

             Federal legislation from the House Committee on Education and the Workforce is currently pending. This Committee has voted favorably for the H.R. 5293 - the Senior Independence Act of 2006. The Act is a reauthorization of the Older Americans Act of 1965. If passed, this Act will provide funding for services to prevent abuse in nursing homes. The Act requires every state to have an Ombudsman Program. Hired personnel regulate nursing home activities and help improve conditions. Congress is considering legislation that would imprison individuals, along with fines up to $3 million, for nursing abuse and neglect.

             The federal government has passed many legislative bills into law in recent decades, but these statutes have not been enforced. For example, the Nursing Home Reform Act of 1987 provided residents with many rights, including: the right to be free from verbal, mental and physical abuse; the right to be free from restraints; the right to have safe, clean conditions to live in, and; the right to be treated with consideration and respect. Unfortunately, these rights are often violated. Along with the Nursing Home Reform Act, the federal government passed the Omnibus Budget Reconciliation Act of 1987 (OBRA). OBRA requires nursing homes to provide each patient with care that will enable the patient "to attain or maintain the highest practicable physical, mental and psychosocial well-being." The OBRA goals are to improve quality of life, encourage the reporting of injuries of unknown origin, and regulate wound care, infection care, reporting, staffing, and abuse and neglect policies. Both Medicare and Medicaid require that nursing homes are inspected and surveyed annually for adequate conditions. Since Medicare and Medicaid cover the majority of nursing home residents, they are responsible for overseeing state survey activities. Therefore, nursing homes must conform to state and federal regulations, defined by the Centers for Medicare and Medicaid (CMS).

             Medicare and Medicaid are spending more than $67 billion a year on nursing home care, yet nursing home neglect and abuse is an increasing problem. In 2004, Delaware State Senator Charles Grassley wrote a letter to the CMS, explaining that the surveying process was fraudulent. Surveyors accused their superiors of instructing them to ignore and minimize the severe deficiencies. Again in April 2006, Senator Grassley reported the same problems. "The GAO discovered two consistent and longstanding problems: serious inconsistencies in the results of state surveys and the continual understating of negative findings. In addition, it has been reported that there is an imbalance in the effectiveness of CMS oversight initiatives." There has been an ongoing pattern of illegal activities in the nursing home industry. With CMS not reporting the correct results on its surveys, abuse and neglect persists undetected and ignored. In May 2006, a government group found that Medicare had failed to penalize those nursing homes that are troubled. Penalties need to be placed so these nursing homes start giving their residents the right care.

             A New Jersey statute, known as the Nursing Home Responsibilities and Rights of Residents and codified as N.J.S. 30:13-5, provides legal remedies for nursing home misconduct. "This law mirrors the Federal regulations (which actually originated from New Jersey's own regulations) and provide both the citizens and State with the right to pursue claims for the denial of any legally protected rights." A New Jersey case from 2004, Stephen Szczuvelek, General Administrator of the Estate of Eugene Burns v. Harborside Healthcare Woods Edge, was filed against Harborside under the New Jersey Survivor Act, New Jersey Nursing Home Responsibilities and Rights of Residence Act, and Federal Nursing Home Reform Act. The complaint alleged that a resident died because of medical malpractice. In this case, Eugene Burns was transferred to Harborside for rehabilitation on April 13, 1999. It was ordered that Burns be suctioned every four hours by his treating physician. On April 15, 1999, Burns wrote a note to a friend, stating: "Steve, you have to get me out of here. They're going to kill me. They left me in my own waste for three hours. They won't suction me. Please get me out of here. And I need to be suctioned now." The next day, Burns was rushed to Somerset as he lapsed in and out of consciousness. On April 17, 1999, Burns suffered from a heart attack and died shortly thereafter.

             A recent case in Delaware resulted in a pretrial settlement in which Shipley Manor Nursing Home was fined $53,000. This case involved a nursing home resident, Edythe Autman, who experienced weight loss and frequently fell. She continuously complained of extreme pain in her hip. In December 2003, she fell, broke her hip, and had subsequent surgery. The surgeon found that she had probably experienced a broken hip a week to a month prior to her fall. In addition, a pressure sore on her buttocks had eaten through to her tailbone. Amazingly, nobody had been aware of these injuries. All incidents of this nature must be reported to both state and federal agencies. The Delaware State Division of Long Term Care Residents Protection ordered that the reports be watered down before submitting them to federal officials.

             In February 2006, four Delaware nurses were arrested for falsifying records and neglecting elderly patients in a Smyrna nursing home. Green Valley Pavilion, a nursing home in Smyrna, Delaware, has recorded many deficiencies in recent years. In April 2006, Green Valley recorded well above the state average of just ten deficiencies per nursing home per year. In April 2006 alone, Green Valley recorded eleven deficiencies. Delaware State Senator Robert I. Marshall has recommended a possible legislative initiative to create a committee that will monitor nursing home care in Delaware. The initiative includes a subcommittee that would further investigate nursing home inspections and analyze documents to ensure that nursing homes are properly run.

             A complaint was recently filed in a Pennsylvania Court in Schuylkill County, Frantz v. HCR Manor Care Inc. The Plaintiff, Mr. Frantz, received care at HCR Manor Care of Pottsville for six days prior to his death on December 23, 2000. While at the nursing home, the complaint alleges that he was not provided with oxygen and suffered from three falls. According to the complaint, HCR Manor Care did not protect Mr. Frantz from these falls. In addition, Mr. Frantz was not given soft foods, and staff failed to reposition him to avoid the progression of his previous ulcer. Plaintiffs demanded compensation based on negligence, negligence per se, corporate liability, wrongful death, and a survival action under the MCARE Act. The 2002 Pennsylvania Act states that "a person who has sustained injury or death as a result of medical negligence by a health care provider must be afforded a prompt determination and fair compensation."

             Residents that are victims of abuse and neglect can bring civil actions against nursing homes. While federal law is unable to provide a cause of action for this abuse and neglect, personal injury attorneys can bring about successful claims from the Federal False Claims Act. Nursing homes can be sued for false advertising. For example, nursing homes that advertise they are a caring, high quality, residential care nursing home must live up to its word. A nursing home owner can be liable for its employees' wrongful acts if committed within the course and scope of their employment.

             Elderly Americans are prone to falling and hurting themselves. However, when these incidents happen in a nursing home, it can be an issue of neglect. Most residents have orders to be supervised to prevent a fall. With an increasing number of residents and a small number of staff, falls are occurring more often. Nursing home neglect is a growing problem, but the legal community has been active and aggressive in striving to force nursing homes to right these wrongs, follow federal and state laws, and take proper care of victims that often can not speak out on their own.

             Simply writing about the nursing home negligence practice is unsettling - injuries due to bedsores, dehydration and malnutrition, overuse of sedatives, unnecessary use of urinary catheters, and inappropriate use of physical restraints. In health care law today, there are few instances that need a greater spotlight and louder voice than in this practice. In order for changes to be made and to stay effective, it is important that we make it more expensive for the nursing homes to neglect and abuse the elderly than to give the necessary care that all residents deserve. It is the ultimate medicine, and hopefully, the cure as well.

Lawrance Spiller Kimmel is a personal injury and workers' compensation attorney at Kimmel, Carter, Roman & Peltz, P.A. in Delaware. He has a B.A. from Cornell University and his J.D. from the James E. Beasley School of Law at Temple University. He also has an MBA from the Fox School of Business and Management at Temple University. He can be reached via e-mail at lkimmel@kcrlaw.com or by phone at (302) 565-6100.