Trial Attorney Blog
Our Atlanta based attorneys have and are litigating cases against nursing homes involving almost unspeakable abuses of elderly and vulnerable patients. These civil suits help uncover abuses by nursing home and insurance companies, according to a new report by the American Association for Justice.
“Where regulatory and legislative bodies have been unable to cope with this distressing rise of neglect and abuse of our elderly, the civil justice system has stepped into the breach,” said the AAJ President, in a statement accompanying the release of the report, “Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans.”
According to the report, the vast majority of the nursing facilities that house more than 1.5 million elderly Americans are owned by private corporate chains, making it difficult for consumers to hold them accountable for abuse.
The report also asserts that insurance companies are more likely to take advantage of older patients with practices like miscalculating mortality rates, denying claims and cutting off benefits for needed treatments.
The report outlines how, through litigation, trial attorneys across the country have uncovered evidence of corporate programs aimed at terminating seniors’ benefits as well as evidence of nursing home abuse and neglect.
The report warns that efforts to combat nursing home abuses through civil suits are hampered by the use of mandatory arbitration clauses in nursing home and insurance contracts.
Abuse
On his first two nights in an Arkansas nursing home run by the corporate Beverly chain, a quadriplegic patient was sodomized by a male orderly. When he complained, the orderly was suspended and eventually fired.
It turned out the orderly had a criminal record, including a felony conviction, had never completed training to be a nurse’s aide, and lied about his previous employment, none of which Beverly Enterprises ever checked. The patient, obviously traumatized, sought justice in a court of law, at which point Beverly Enterprises claimed the sodomy had been consensual.
Researchers at the National Center on Elder Abuse estimate as many as 1.5 million seniors are abused every year. Yet experts believe most incidences of abuse never come to the attention of authorities. For every case that does get reported, five more go unreported.
Much abuse can be traced to nursing home corporations who are negligent in hiring staff. A 2005 investigation by the Michigan Attorney General’s Office found more than eight percent of the state’s nurse’s aides had outstanding criminal warrants, despite rules requiring nursing homes to undertake yearly background checks. A Sun Sentinel investigation in Florida found more than 3,500 people with criminal records, including rape, robbery and murder, were allowed to work with the elderly over a two decade period. Even when facilities did run background checks and found criminal records, they often ignored the results.
Researchers at the National Center on Elder Abuse estimate as many as 1.5 million seniors are abused every year. Yet experts believe most incidences of abuse never come to the attention of authorities. For every case that does get reported, five more go unreported. Many nursing home residents are afraid of the repercussions of reporting abuse to largely ineffectual regulatory authorities.
In the face of a regulatory system that often enables criminals to work with the elderly, and offers little beyond irregular and ineffective facility inspections, it has been trial attorneys that have proven to be the only force capable of holding corporate nursing homes to account. In the Beverly Enterprises case, a jury found the nursing home giant had been negligent in hiring the orderly and awarded the patient compensatory damages and punitive damages.
Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans
Medical Errors
In 1996 in Connecticut, 71-year-old Gloria Bonaffini went into Bridgeport Hospital for routine heart surgery. Doctors told her she would likely be home within the week. She never left. Gloria contracted a staph infection deep inside her sternum and spent more than a year in the hospital before finally dying.
Gloria’s death was no fluke. Bridgeport hospital was plagued with infections caused by poor hygiene and chronically inadequate facilities. The hospitals faulty ventilators contaminated the air with dust, and flies buzzed overhead during open-heart surgery. Doctors and nurses wore non-sterile clothing and often did not wash their hands. As many as one in five surgical patients entering the same operating room as Gloria came out with infections.
“The case, which involves four patients who contracted infections inside Bridgeport Hospital, also exposes how the bottom line influences decisions that allow germs to flourish in what are supposed to be the most sterile quarters in a hospital.”
The systematic problems at Bridgeport only came to light when the hospital’s records were made public during litigation in the Connecticut Supreme Court. In the words of the Chicago Tribune, which examined those records, “the case, which involves four patients who contracted infections inside Bridgeport Hospital, also exposes how the bottom line influences decisions that allow germs to flourish in what are supposed to be the most sterile quarters in a hospital.” Hospital administrators had long known of the infection problem but dismissed possible solutions, such as replacing the air filtration system and putting infected patients in private rooms, because they considered them too costly.
Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. The Institute of Medicine’s (IOM) seminal study of preventable medical errors estimated as many as 98,000 people die every year at a cost of $29 billion. If the Centers for Disease Control (CDC) were to include preventable medical errors as a category, these conclusions would make it the sixth leading cause of death in America.
Senior citizens are particularly at risk. While representing just 13 percent of the population, seniors account for 34 percent of all adverse drug events.48 Long-term care residents suffer 1.9 million adverse drug events every year, 70 percent of which are preventable. As many as 86,000 of these events are fatal or life-threatening.
The civil justice system not only allows patients to seek justice for their injuries, it also encourages providers and hospitals to institute patient safety systems that help prevent negligence. In the case of Bridgeport Hospital, civil actions on behalf of patients killed and injured by infections eventually prompted administrators to embark on a $30 million renovation. The hospital upgraded its air filtration system and hand washing stations, and made change to staff practices, such as a prohibition on doctors wearing scrubs home. These improvements drastically cut infection rates, from 22 percent of cardiac surgery patients to nearly zero.
Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans
Conclusion
The business of nursing homes is now far more corporate than ever before. The “mom and pop” homes of times past have been largely replaced by corporate chains. These corporations see nursing homes, and the huge influx of baby boomers destined to move to them, as profit centers. They will do anything to protect these profits.
Unfortunately, it is the residents of nursing homes who have suffered the consequences of this drive for ever more profits. These elderly patients have suffered the neglect that results when corporations put profits before people.
Regulators are of little recourse to the elderly. Part of the problem is a hodgepodge of state regulation governing nursing homes and insurance companies. It is unrealistic to expect government agencies to be able to protect nursing home residents when the abuses they are subject to are so commonplace. Nor has the industry shown anything more than a cursory attempt to regulate itself.
Trial attorneys have proven to be the most effective representative of injured and abused nursing home residents. Without the vast and permanent bureaucracy of the regulatory and legislative systems with which they work hand in hand, trial attorneys are able to respond to the frequent injustices to which seniors are subject.
As the corporatization of senior living continues, it is clear trial attorneys will play an ever more vital role as the last, and often only, line of defense for nursing home residents.