Articles Posted in Nursing Home Abuse

In late March, Governor DeSantis signed Senate Bill 72 into law providing vast protections for nursing homes from liability for Covid infections.  The law applies to more than just nursing homes, it also applies to hospitals, schools, churches and state governmental agencies. As Jacksonville nursing home lawyers, our focus is on the effect this will have for residents or family members who suffered personal injury or death due to Covid infections.

Not surprisingly, we saw some of the worst outbreaks of Covid at the worst nursing homes in Jacksonville.  Nevertheless, nursing homes that were more careless than others may see no repercussions for their failure to respond to Covid.  We do not think that any legal protection from Covid claims was necessary for nursing homes.  Infectious disease concerns are nothing new in the nursing home realm.  Nursing homes must be constantly vigilant for contagious infections including: clostridium difficile (“c diff”); scabies; certain urinary tract infections; and tuberculosis, to name a few.

The new law provides many obstacles for a claimant asserting the nursing home ignored Covid concerns.  First, the claimant must establish that the nursing home was “grossly negligent.”  Normally, a plaintiff in a nursing home neglect lawsuit provide oridinary negligence, i.e., that the nursing home failed to meet general nursing standards of care.  Now, presumably, a nursing home operator that neglected coronavirus issues will not be responsible for residents who were unnecessarily infected, provided the nursing home operator did not act “grossly” negligent.

The difference is much more than semantics.  Instead of merely having to prove that the nursing home failed to satisfy general nursing home standards, the plaintiff must now prove that the nursing home operators had a deliberate and reckless disregard for the safety and reasonable treatment of residents.

Furthermore, a claimant must now obtain an affidavit from a physician and file that affidavit when suit is filed.  Previously, a claimant merely had to have the matter reviewed by a registered nurse. This makes the process more difficult and expensive for the nursing home attorneys representing nursing home injury cases related to Covid.  Our attorneys handling nursing home injury claims in Jacksonville front all costs associated with prosecuting a claim, but, at the end of the case, the money we spend is paid back from any settlement or judgment. So, we try to mindful of the expenses we incur as we pursue a case.

Once suit is filed, the court is required to make an initial determination whether the plaintiff pled the complaint with “particularity” (which means more facts than normal are required) and whether the defendant made a good faith effort to comply with government issued health standards. If the court finds that the nursing home operator made a good faith effort, the nursing home will be immune from liability and the lawsuit will be dismissed.

The burden of proof is on the claimant to establish that the nursing home operator failed to make a “good faith effort” to comply with the Covid health standards. If a court determines that the nursing home operator made a “good faith effort” to comply, then the nursing home is immune from civil liability.  What constitutes good faith will be determined on a case by case basis and the trial court’s determination in this regard will be very hard to overturn on appeal.

The law also applies retroactively, creating a one-year statute of limitations for all Covid claims. Normally, nursing home neglect claims have a two year statute of limitations. Continue reading

Jacksonville, Clay County and Flagler County have a total of six nursing homes operated by Consulate Healthcare, which is a large national chain. In northeast Florida, Consulate operates: Harts Harbor Health and Rehabilitation; San Jose Health and Rehabilitation; Consulate Healthcare of Jacksonville; Governors Creek Health and Rehabilitation; Consulate Health Care of Orange Park; and Grand Oaks Health and Rehabilitation Center.

Our Jacksonville nursing home neglect lawyers have handled many cases against Consulate facilities, including five wrongful death cases.  Previously, our lawyers blogged about Consulate’s nursing homes’ poor rankings in 2019 and Consulate’s poor nursing home rankings in 2018.

Consulate manages many of its nursing homes through a company called “CMC II, LLC.”  Several years back, a judgment was entered against CMC II, LLC and several other Consulate entities in relation to a claim brought against it by a whistleblower alleging Medicare billing fraud.  After originally being set aside by the trial judge, last year the 11th Circuit Court of Appeals reinstated the judgment in excess of $257 million. This judgment led to the bankruptcy filing.

The Effect of CMC II’s Bankruptcy Filing on Nursing Home Neglect Cases

Ever since the judgment was reinstated, nursing home neglect lawyers have been uncertain what would become of CMC II, LLC, along with uncertainty about the pending claims against it for nursing home neglect or abuse.  Days before learning that CMC II, LLC, filed bankruptcy, we filed a wrongful death suit against the San Jose Health and Rehabilitation nursing home in Jacksonville.  Thankfully, we sued both the licensee and CMC II, LLC.  The licensee was a company related to CMC II, LLC; however, the licensee did not file bankruptcy.  As such, we are able to move forward with the lawsuit against the licensee, but the case against CMC II, LLC, is subject to the bankruptcy automatic stay provisions, meaning the lawsuit cannot move forward.

Each nursing home operated by Consulate has its own separate LLC, which is usually named after the address of the nursing home. For example, Governor’s Creek Health and Rehabilitation is a Consulate nursing home in Green Cove Springs.  The licensee for Governors Creek is 803 Oak Street Operations, LLC, which is a Consulate entity.  So, at least for the time being, our suits against Consulate nursing homes will proceed against the licensee LLC and not against the management company, CMC II, LLC.  The effect that this will have on future litigation is unknown.

Suspect you may have a claim against a Consulate nursing home?

As Jacksonville nursing home abuse lawyers, we typically receive calls from a concerned family member of a nursing home resident.  Often, family members have a suspicion that neglect occurred, without knowing exactly what happened.  If we agree that something does not seem right, we will obtain and review the nursing home records.  Typically, the injuries at issue will require EMT and hospital care.  We typically get those records as well.

If, after reviewing the records, we think there is a potential basis for a neglect claim, we will incur the expense of having a registered nurse review the records to determine whether the appropriate nursing standards of care were met.  If not, we typically accept the case at that point and initiate the claim process. Continue reading

Florida is well known as a place for retirees. What comes with that is an abundance of long term care facilities, also known as nursing homes or skilled nursing facilities.  In general, nursing home residents are at a very high risk of dying if they contract the cornonavirus due to their age and preexisting health issues.

To date, over 3,000 residents of Florida nursing homes have died from Covid.  This figure represents approximately 40% of Florida’s Covid deaths.  This is, of course, hugely disproportionate as less than 4% of Florida’s population resides in nursing homes at any one time. This demonstrates that more needs to be done.

Last week, the nursing homes located in St. Augustine, Jacksonville and the rest of Northeast Florida, reported 22 Covid deaths.  Before last week, the highest weekly total was 11.  So far, 109 Northeast Florida nursing home residents have died due to Covid.

Complicating the fight against coronavirus in nursing homes is that staff members, especially CNAs and LPNs, see many residents each day.  CNAs perform or assist with many of the personal activities of daily living, like eating, bathing, toileting and transferring in and out of bed.  Because of the close nature of this personal care, CNAs can easily spread the virus from one resident to another.

It is necessary that nursing homes take special precautions to ensure that none of its staff members bring coronavirus into the facilities.  Staff members who have the virus but asymptomatic present a disaster in the making.  Nursing homes must mandate mask wearing by its employees, must test even asymptomatic employees on a frequent basis, must provide (and require the use of) personal protective equipment for each resident to whom a staff member provides care.  Staff members must also be questioned daily on whether they have been in contact with anyone who has tested positive and whether they have had any symptoms consistent with Covid.  Of course, their temperatures must be taken before each work shift.  In addition, residents who test positive should be kept isolated from other residents.

Without these measures in place, nursing homes will continue to be hotbeds of Covid infections and death.  Whether nursing homes will be held liable for preventable Covid infections remains unknown due to the length of time it takes for a nursing home case to be litigated.  Furthermore, there has been mention of the possibility of legislation providing immunity for health care providers for coronavirus infections and resulting injuries or death.  Whether such legislation would violate constitutional rights to seek redress in the court system remains uncertain.  We do know from prior legislation that caps limiting damages have been held to be constitutional.  Lower caps would make nursing home claims economically infeasible due to the high expense in prosecuting nursing home cases and would effectively amount to a ban on such cases. Continue reading

As of June 16, 2020, Duval County, Florida (Jacksonville), has had 59 deaths due to the coronavirus.  In all, there have been 2194 people diagnosed in Jacksonville with Covid.  Tragically, one Jacksonville nursing home has accounted for 30% of the Covid deaths in the county, which translates to 18 people.  That nursing home, Signature Healthcare of Jacksonville, is located at 2061 Hyde Park Road, Jacksonville, FL, 32210.

While nursing homes may represent one of the most challenging environments for dealing with the coronavirus, nursing home operators must respond accordingly.  It is simply not satisfactory for a nursing home to claim that the situation is difficult and that, as a result, it is not responsible for failing to appropriately respond to the virus. Our Jacksonville nursing home abuse attorneys have handled many claims against local nursing homes for failing to prevent or treat infections and we have seen many egregious situations.

The US Centers for Disease Control has issued guidelines for nursing homes dealing with coronavirus concerns.  Among the CDC’s “core practices” are the following: 1. assign at least one person with training in infection control to provide on-site management of the facility’s infection protection and control program; 2. report Covid cases to the national database on a weekly basis; 3. educate all residents, staff and other persons entering the facility about the precautions; 4. implement source control measures (all heathcare providers should wear facemasks and residents should wear masks when leaving their rooms); 5. have a plan for visitor restrictions; 6. create a plan for testing residents and health care providers; 7. manage healthcare personnel (sick leave policies, excluding non-essential personnel, and screening employees for infection by taking temperatures); 8. provide sufficient supplies of hand sanitizer, masks and personal protective equipment; 9. segregate a space in the facility for caring for residents with covid; 10. create a plan for dealing with the admission of new residents whose Covid status is unknown; and 11. evaluate and manage residents with Covid.

Some nursing homes will respond better than others to the coronavirus.  We have a feeling we already know which ones are going to do the worst, and, frankly, that is a shame.   Most often when we see neglect, we find out that the nursing home was understaffed.  Understaffing in nursing homes will only make coronavirus all the more deadly as overworked nurses and assistants try to juggle more than they can handle.  Continue reading

When a nursing home resident is injured in Florida, Florida Statute § 400.147, requires that the nursing home prepare an incident report.  While nothing in the statute directs the type of information that must be contained in the incident report, obtaining the report can shed light on what happened to cause the incident.

Florida Statute § 400.147 not only requires that a nursing home prepare an incident report, it specifically provides that the report is discoverable.  Typically speaking anything that is “discoverable” can be obtained once suit has been filed.

Unfortunately, courts interpreting this statute have ruled that the reports are protected from discovery as work product. Tampa Medical Associates, Inc. v. The Estate of Torres, 903 So.2d 259 (Fla. 2^nd DCA 2005). This means, that in order to obtain the reports, a lawyer prosecuting the nursing home abuse claim in Florida must prove a need for the report and that he or she faces undue hardship without it.  Undue hardship focuses on whether there are other ways to obtain information about how the incident occurred.

Proving need and undue hardship can be accomplished in cases where witnesses cannot be found or if the witnesses cannot recall what happened.

Nursing home staff members have usually been well trained to keep the description of an incident entered into the nursing notes extremely vague.  For example, nursing notes may describe an incident as “resident fell, leg pain, sent to hospital for evaluation.”  Because of such generic charting, the resident’s representatives are often left in the dark about what caused the fall.

This problem is compounded by several factors.  First, nursing home residents often suffer from some sort of cognitive deficits, whether it be by reason of dementia, Alzheimer’s disease or simple age-related cognitive decline.  Because of this, residents are often uncertain about how the incident occurred.  In wrongful death cases, there is obviously no input that can be provided by the resident.

The next concern is that nursing home claims are subject to a pre-suit process.  Obtaining records from a nursing home can take forty days or more as the nursing home is given thirty business days to produce the records of a former resident.  On top of that, nursing homes often fail to provide all of the records, resulting in even more delay as the resident’s attorney must determine what is missing and inform the nursing home.  As delay is on their side, nursing homes are often slow to respond to such requests.

Once all the records are obtained, the attorney must then have the matter reviewed by an expert witness, usually a registered nurse.  Only if the expert finds that the nursing home failed to meet the standard of care does the attorney then have the ability to initiate the seventy-five day pre-suit process.  Once suit is filed, it takes at least several months to take the first deposition.

Furthermore, nursing homes have very high employee turnover.  This means that in order to take the depositions of former staff members, those individuals must be located and served with a subpoena to appear.  It gets even worse as the nursing home will usually refuse to give the names of staff members who were working on the wing and shift in question.  If so, a motion to compel must be filed, with a hearing set weeks or months out to get the names.

In all, the first depositions are often not taken for more than a year after an incident occurred. After such a lengthy delay, the nursing home staff members commonly assert they can no longer recall any details about the incident.  Our Jacksonville nursing home abuse attorneys find that this happens in almost every case to some degree.

Once all of the available witnesses have been deposed, the attorney can then demonstrate to the judge that he or she was unable to obtain the information through other means and that the incident report is necessary to determine what happened.  Hopefully, the judge will agree and require the nursing home to produce the report.

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File this one under “believe someone the first time they show you who they are.”

Across the country, the nursing home industry has been lobbying for immunity from Covid-19 claims.  In fact, Florida’s governor is  considering such a proposal right now.  Immunity means that a nursing home can neglect your loved one and unnecessarily cause his or her death and have no consequences for doing so whatsoever.  None.

What is even more preposterous is that some states are also providing immunity for nursing homes that fail to keep resident records currently required by law.  Imagine that your loved one dies from Covid and you get no explanation from the nursing home as to what happened and there no records to review.  That’s it – your inquiry is over.

Highlighting this problem is that nursing home residents are our most vulnerable citizens, they need more protection, not less.  So far in Florida, Covid deaths in nursing homes represent 20% of all Covid deaths in the state.

Nursing homes that fail to take even the most basic precautions to prevent infections would have no consequences for doing so.  Failing to use PPE, failing to educate staff on simple infection protocols, failing to test and isolate sick residents – you name it – its open season.

In all but the absolute worst circumstances, they wont have any criminal responsibility either.  No repercussions whatsoever.  Sound like a good idea?  Has this industry demonstrated it doesn’t need oversight?

Are there nursing home operators who are conscientious and will do a good job?  Yes, and they don’t need protection.

Let me give you an example, the Centers for Medicare and Medicaid services rank every nursing home in the country that accept Medicare as a form of payment.  The ranking system is from one to five stars and is based on a host of categories relevant to resident health and safety.  Our Jacksonville nursing home abuse attorneys have brought claims against every one star facility in the greater Jacksonville area and, in some instances, we have brought multiple wrongful death claims against the same nursing home.  In contrast, to date, we have not handled a single claim against a five star facility.  Not one.

When we were not in a crisis, how did some of the nursing home operators act?  In other words, “who have they shown us to be?”

The cases handled by our Jacksonville nursing home neglect lawyers tell volumes:  a woman who died unnecessarily from a ruptured intestine after nursing home staff ignored weeks of diarrhea; a 52 year old woman who died because the nursing home refused to provide her with medication because the medication was too expensive; and a woman who died after her tracheostomy tube came out and no one at the nursing home knew it needed put it back in in order for her to breathe.  In all of these cases, the nursing homes were understaffed and its employees were poorly trained.

How will we feel when we learn that the nursing homes with one or two stars are the ones with the highest rate of Covid infections and Covid deaths?  I guarantee that there will be a positive correlation.  Is that okay?  Do those operators deserve immunity?

Also, don’t buy it when they try to tell you they don’t get enough money from the government to properly take care of people.  It is not true. One star facilities get paid exactly the same amount per resident as five star facilities. Continue reading

The coronavirus presents new and challenging concerns for many sectors of our society.  This is all the more so with nursing homes. Because the virus is easily spread among people living in close proximity, and because it is especially deadly for older persons with health issues, nursing homes provide fertile ground for catastrophe.  As a stunning example, a Life Care Center nursing home in Seattle has had thirty residents test positive for the virus with another nineteen having already died.

Viral infections in nursing homes are nothing new; however, one big variant is that there is no vaccine currently available for the coronavirus.  Despite these challenges, nursing homes are required to take all measures possible to avoid the infection and spread of any virus.

It is not acceptable for a nursing home to claim that it cannot control the spread of the coronavirus because there is no vaccine.  As detailed below, nursing homes in Jacksonville are already routinely cited for failing to implement standard infection control measures.  This means that nursing home staff are not properly trained in preventing the spread of disease.  The result is that infection is spread by: unwashed hands; gloves used by staff on more than one resident; insufficient isolation protocols for contagious residents; improper housecleaning and laundry service; and a lack of training to identify residents suffering from a contagious illness.

Simply put, when you add a pre-existing wholesale lack of preparation with the challenges presented by a new illness, you get a disaster that could have been prevented or minimized.  The coronavirus was not unforeseeable.  To the contrary, new viruses appear all the time, with recent examples including SARS, MERS, Zika, the bird flu and the swine flu.  In fact, the coronavirus presents the exact scenario that infection control measures are designed to address.

In the greater Jacksonville and Northeast Florida area, fifty-two of the nursing homes have been cited for insufficient infection control measures. One of the measures used to rank nursing homes by the Centers for Medicare and Medicaid Services relate to infection control measures in place at each nursing home.

In assessing the nursing homes’ infection control measures, state inspectors employed by Florida’s Agency for Healthcare Administration focus on:

-transmission precautions;

-training of staff in transmission precautions to be taken;

-use of personal protective equipment;

-hand washing and glove use;

-laundering of linens and towels; and

-measures in place to detect the spread of infections.

Our lawyers have handled many infection cases against Jacksonville area nursing homes including: urinary tract infections; clostridium difficile (“C. diff.”) infections; pulmonary infections; scabies; and infected bedsores.  One thing we have noticed in almost every infection case is that signs and symptoms of the infection were overlooked or ignored.  With elderly and infirm people, it only takes a few days for an infection to turn into deadly septic shock.

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One of the most common types of nursing home abuse cases that our lawyers handle involve bedsores.  Bedsores, also known as decubitus ulcers, form when bony prominences of the body are subjected to prolonged pressure with a mattress, bedding or a medical device.  Most commonly, bedsores occur on the sacrum, which is the lower back just above the buttocks.  Other common locations for bedsores include the feet, ankles, toes and elbows.

Bedsores can be horrific. If not treated, they can lead to unrelenting pain, disfigurement, hospitalization, surgical procedures, severe infection and death.  Our Jacksonville nursing home abuse attorneys have seen cases of bedsores so large and deep that the affected body part is hard to recognize.

A nursing home must take precautions to prevent bedsores and must respond promptly if a bedsore does develop.

First, a resident must be assessed regarding his or her risk of skin breakdown.  The “Braden” assessment scale is the most common method for determining this risk. The Braden scale uses a point system for various risk factors including: the resident’s sensory perception (if a resident has a limited ability to feel pain, he or she will be less likely to move, or seek help moving, in order to relieve the pressure point); exposure to moisture (if a resident is likely to have consistently moist skin in an area, for ex., a person with urinary incontinence who is not using a catheter, that person is much more likely to develop a bedsore in the moist area); vascular status (a resident with restricted blood flow is more likely to develop bedsores); activity levels (residents who are bed-bound are more likely to develop sores than those who are more mobile); and nutrition (residents with nutrition challenges such as kidney disease which limits their protein intake are more likely to develop bedsores).

It is necessary that a nursing home complete the Braden scale for every resident. For those with medium or high risk scores, preventative measures must be taken.  A deflating air mattress can be used which, as it loses air, changes the areas of the body that are impacting the bed.  Further, nutrition must be monitored and blood tests should be performed to demonstrate that protein consumption is optimal (measured by albumin and pre-albumin levels).  Further, changing the resident’s position should be performed on every shift and documented in his or her chart.  Finally, frequent examinations of all skin areas must be made with charting reflecting any areas of concern.  Any areas of concern should be brought to the attention of the resident’s doctor so that all measures can be put in place to prevent the sore from worsening and to promote healing.

For some people, bedsores are inevitable.  Sometimes, when a person is near the end of life, his or her skin may be one of the first organs that fails.  In these circumstances, a nursing home is not negligent if non-healing bedsores develop.  However, it is critical that the nursing home chart all of the steps taken above and have the doctor chart regarding both the efforts being made and the support for the notion that the resident is experiencing bedsores that cannot be prevented or healed despite best efforts.

Unfortunately, the scenarios most often seen by our nursing home neglect lawyers for cases in the Jacksonville area, involve little to no compliance with: performing a proper Braden assessment; creating an appropriate care plan to address skin breakdown risks; following through with required precautions; and responding appropriately once a bedsore develops.  When we review a case, we study the records to look for such entries.  If they are not there, we then have the case reviewed by an expert witness who is a registered nurse.  If that expert finds neglect, then we are ready to start the pre-suit notice process.

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Florida’s Agency for Health Care Administration is the state agency that licenses nursing homes.  The number of nursing homes in the state is strictly regulated through a “certificate of need” program, which greatly limits the number of new nursing homes in the state.  Creating an artificially low number of nursing homes is adverse to the free market and has a very negative effect on consumers of nursing home care.  As lawyers handling nursing home cases throughout the greater Jacksonville area, we have seen this firsthand.

The free market should dictate how many nursing homes are in operation through standard principles of supply and demand.  If there are too many nursing homes and they are having trouble filling their beds, investors will not be encouraged to open new ones.  On the reverse side, if investors see that poor quality nursing homes are essentially full, they will open new nursing homes to provide better care and obtain a significant market share.  This is how almost all commerce happens in the United States,whether it be restaurants, gas stations or new home construction.

However, this is not the case with nursing homes.  The total number of nursing home “beds” in the state is keep at such a low level that even the worst nursing homes have high occupancy rates.  This is because the nicer nursing homes are full and people are left with no other option but to reside in an inferior, underfunded and often outdated facility.

Here in the greater Jacksonville area, AHCA has received the highest number of new applications for nursing homes in St. Johns County, one of the fastest growing counties in the entire United States.  Close to 20% of St. Johns County residents are over 65 years old. There are currently 8 skilled nursing facilities in operation in the county.  Applications have been filed for six additional facilities in the county.  So far, only one application has been approved despite the quickly growing population.

One would think the State of Florida would be very accommodating to its senior population as the state derives significant economic benefit from the huge number of retirees that move into the state.  It is not.  This is because the nursing home lobby dwarfs the voices of the elder population.  That lobby, with its extensive connections and funding, has kept Florida friendly to nursing home operators at the expense of the quality of care provided to nursing home residents.

One example, is that, while the Florida legislature felt the obvious pressure to require that nursing homes carry professional liability insurance, it passed a law requiring such insurance; however, there is no minimum level of coverage required by the statute. Technically, a single dollar of coverage satisfies this condition, and, frankly, this is essentially what we see.

An insurance policy of nominal value, say $25,000.00 of single limit aggregate coverage for multiple nursing homes, is very common and satisfies the requirement yet provides no meaningful coverage whatsoever.  Sound farfetched?  In the majority of cases handled by our Jacksonville nursing home neglect attorneys, there is no recovery made from an insurer.  Rather, the recovery must come from the nursing home operators directly.

Many of the nursing home operators are merely shell companies designed to limit the parent companies’ legal exposure.  A shell company with little to no assets cannot fund settlements or pay verdicts in the event of neglect or abuse resulting in injury or death.  The end result is that the consequences of nursing home neglect are minimized resulting in a decreased incentive to provide high quality care. Continue reading