ThePopTort

Nursing Home Abuse, Compensation Limits and MICRA

If you know anything about what goes on in nursing homes these days, like our friends do at NCCNHR: The National Consumer Voice for Quality Long-Term Care, you might find it hard to believe that any politician would want to limit compensation to seniors who are abused or neglected in nursing homes.  House Minority Leader Boehner’s health care bill, for example, would have imposed extreme national liability limits in nursing home cases.

Unfortunately, many states have done this already, like California’s broad MICRA law which imposes one-size-fits all caps on injured patients in that state.  But even MICRA has exceptions, and we’re hoping they apply in this highly unsettling elder abuse story out of Ventura County, CA, involving a 71-year-old woman named Maria Arellano.  

Arellano, who was left unable to speak after suffering a debilitating stroke, was living in the Fillmore Convalescent Center in 2006 when her family began noticing bruises on her body.  After expressing concerns about the bruises to center personnel, the family was essentially rebuffed—so they set up a hidden camera.  The resulting footage revealed that center employee Monica Garcia had been “slapping Arellano, pulling her around by the hair, bending her neck, fingers and wrists, and treating her violently in a shower chair.”

A civil suit was then filed against the center on Arellano’s behalf.  Although Arellano’s attorney, Gregory Johnson, offered to settle the matter for $500,000, the center refused, never even offering to resolve the matter with mediation.  “There was a lot of arrogance [on the part of the center],” said Johnson.

In the end, a jury awarded Arellano significantly more that her original settlement offer—which brings us back to MICRA—and more specifically, the question of whether it applies to the Arellano case.

Turns out, the California Supreme Court has said that in cases like Maria Arellano, where the abuse was clearly motivated by “malice,” the answer is no.  (See Covenant Care, Inc. v. Superior Court (2004); Delaney v. Baker (1999).)  We’re especially glad to know this, given that another resident who lived across the hall from Arellano at the center (also a non-verbal stroke victim) may have been subject to the same abuse.  His case is pending.

Unfortunately, for most other California patients, the nightmare of MICRA continues.

Documents Show Lilly Marketed Zyprexa for Dementia, Knowing It Did No Good

Regular readers of ThePopTort may recall that in February, we ran a piece suggesting that drug companies were fast becoming America’s “new bottom-feeders,” displacing the likes of say, telemarketers as society’s number one social pariahs.  Well, this next item sort of takes that premise to the next level—and then some.

A group of insurers is currently enmeshed in a nasty legal tussle with drug giant Eli Lilly over the company’s illegal “off label” marketing of the anti-psychotic drug, Zyprexa.  If you’re having déjà vu about now, that’s probably because the company has been in similar trouble before, downplaying the fact that the drug could cause significant weight gain and diabetes, while employing a variety of nefarious tactics  to convince doctors to prescribe the stuff to elderly people to help alleviate dementia, sleep troubles and irritability (even though it knew the drug didn’t work for those conditions).

But what makes this latest courtroom drama so interesting is that U.S. District Judge Jack Weinstein ordered the release of  internal Eli Lilly documents that illustrate just how far the company was willing to go to defraud the public in its efforts to make Zyprexa a “$6 billion” drug.

For example, documents reveal “Lilly employees compiled a guide to hiring scientists to write favorable articles, complained to journal editors when publication was delayed and submitted rejected articles to other outlets.”

And despite the fact that various internal studies “didn’t find Zyprexa was effective in treating dementia,” but did find “death rates among older dementia patients on Zyprexa...were two times higher than their counterparts taking placebos,” Lilly continued marketing to seniors, as they were the “2nd biggest money producing segment” of Zyprexa sales.

In one particularly disgusting 2002 email exchange, Lilly researcher Peter Feldman told the company’s global marketing director, Denice Torres, that Lilly intended to stop studying Zyprexa’s potential benefits for elderly people because doing so would risk “killing the goose that lays the golden eggs to save on poultry feed costs.”  Torres concurred, emphasizing how “elderly” customers remained an important “focus” of the company’s marketing efforts.

In yet another email, marketing executives advised sales people to downplay the weight gain associated with Zyprexa by characterizing it as a “manageable side-effect,” and to “continue to address the diabetes concern only when it arises.”  The document then went on to urge its readers: “Get back to selling!”

Let’s Hope Oklahoma-style Anti-Civil Justice Laws Don’t Put Seniors at Risk

It’s pretty clear that those of us at ThePopTort don’t like it when lawmakers tell jurors what to do by legislatively “capping” compensation that juries can award.  But when state lawmakers do go down that mistaken road, they must, at the very least, have exceptions for gross negligence or reckless misconduct.  That’s what Oklahoma recently did. 

And a story we found from the Tulsa World shows why exceptions like this are so important.  A whistleblower suit brought by a former housekeeper at the Cimarron Pointe Care Center (one of six Oklahoma nursing homes and one assisted living facility owned by one Eddie Martin), provides a troubling glimpse at exactly how egregious resident abuse can be.

The former housekeeper, Diana Harris, saw “a male resident who had been left in his own waste for so many hours that he had feces caked on to his leg from his hip to below his knee, and had wet himself at least one time."  When Harris reported this to a supervisor and two aides, the decision was made to leave the man “for the next shift”—which didn’t come on for another two and a half hours.  

Harris also reported that an elderly woman who was paralyzed below the waist and had soiled herself, managed to roll into the hallway and ask for help, only to be “laughed at” by nurses.  Still another resident, who was unable to sit up alone, was left on a bench in the shower, which resulted in her falling and being injured. 

Once the staff learned Harris intended to go beyond just alerting her supervisors to these abuses (which was obviously not working) and involve her husband, a retired private investigator with a reputation for exposing elder abuse, she was fired.

Needless to say, we know nursing home abuse, such as that witnessed by Harris, is a terrible, ongoing problem in America—and one that lawsuits can be instrumental in helping to remedy.   Here’s hoping that if any of these residents do bring suit, Oklahoma law allows the cases to go forward.

Louisiana Anti-Senior Citizen Bill Defeated!

Great news, civil justice fans! It’s an “ask and ye shall receive” kind of day here at ThePopTort!  Just one day after we told you about a horrendous anti-civil justice, anti-consumer, anti-senior citizen law that was under consideration in Louisiana, the state’s House of Representatives voted overwhelmingly to give it the old heave ho!

The measure, as we explained yesterday, would have made it extremely difficult for nursing home residents who have been injured by incompetent or negligent staff to bring a lawsuit.  And it would have severely limited compensation to these residents - subjecting them to the state’s draconian malpractice caps.

Thankfully, by a 60-38 vote, the bill was mercifully launched into the ether.

Rep. Chris Roy, (D-Alexandria), delivered an “impassioned opposition” to the bill, urging his colleagues “not to believe the malarkey” that the bill was somehow “consumer oriented.”

Props to the AARP, Louisiana Association for Justice, and other groups who fought hard to defeat this unbelievably mean-spirited bill!

Louisiana Bill Seeks to Deprive Civil Justice to Seniors

Several weeks ago, we celebrated the demise of a Tennessee bill that would have severely limited compensation for nursing home patients who had suffered the worst kinds of abuse and neglect.  The “Kill Old People Cheap Act,” as it had come to be known, thankfully, never made it out of committee.  Unfortunately, the same cannot be said for a similar bill currently under consideration in Louisiana.

The Louisiana law, known officially as “HB 72,” is aimed at restricting nursing home residents’ ability to seek justice in court for injuries caused by non-medical staff performing “patient-related services.” (That is, injuries incurred through common daily activities such as moving from place to place, eating, bathing, and dressing.)

In a nifty bit of legislative jujitsu, the law would accomplish this cruel objective by expanding the state’s current definition of “medical malpractice” to encompass these day-to-day activities—thereby subjecting them to the state’s draconian malpractice caps.

Needless to say, HB 72 represents the opposite of showing respect for one’s elders.

Ding Dong the Wicked Legislation is Dead!

Yesterday afternoon, the Tennessee Housing Subcommittee deadlocked (essentially killing) legislation pushed by the nursing home industry that would have limited compensation for nursing home patients who suffer the worst abuse and neglect.  

The “Kill Old People Cheap Act” as it was called by Representative Henry Fincher would have severely limited compensation to patients and families for injury or death caused by a nursing home.  As Rep. Fincher said

The problem with the bill is that there's no guarantees of patient care.  All it does is guarantee that corporations will make money at the expense of hurting and killing elderly patients. That's not the right policy in the state of Tennessee.

Advocates from AARP and others are planning on going back to the drawing board to see if they can’t “find an answer that's going to provide more quality for patients in nursing homes.”

Right on!

In the News

Student activism pays off: Harvard teaching hospitals issue rules that say, “Beware of drug companies bearing gifts.”

New England Journal of Medicine comes out strong—again—for the Medical Device Act.

Appalling Tennessee nursing home allegations underscore why limiting legal recourse for injured residents is a horrible idea. 

As we’ve said before, lawsuits are critical for holding accountable U.S. corporations accused of human rights abuses. 

Despite poisonous peanuts and pistachios (among a slew of other tainted items), U.S. food safety efforts have “plateaued.” 

If At First You Don’t Succeed...Keep Trying to Take Away Nursing Home Victim’s Rights

It must be that time of year again.  State legislatures are up and running, passing laws that (we hope) will make our states better places to live.  Of course I suppose that depends on what your definition of “better” is.

And I suppose if you are a nursing home owner in Tennessee you’ve lent your support ($$$$) to legislation introduced again (they tried last year and failed) that would limit legal recourse for nursing home residents should they be harmed or killed.   This year's bill would place an arbitrary cap on damages that victims could collect, which Tennessee's AARP and consumer groups vehemently oppose.

"It's obscene," says Tom Peters of Tennessee Citizen Action, which opposes the bill. "These legislators are putting a campaign contribution over someone's life," referring to the millions of dollars the nursing home industry has spent over the last decade to lobby the state legislature.

But among other things, the civil justice system is supposed to compensate victims of grossly inadequate care or gross failures of care.  Caps would benefit nursing homes, but harm victims – yet most of the press spins this issue as if it is the lawsuits that are preventing the nursing home industry from providing proper care for the elderly.  Last year, the New York Times wrote an investigative report on the nursing home industry and found that the corporations often shield themselves from litigation by setting up a network of dummy companies preventing victims from receiving compensation.

Personally, if I had to put a loved one in a nursing home I would want to be sure that the facility was spending most of its time and attention on the care of its residents – not finding new ways to shield itself from accountability.

Bush, Obama and Nursing Homes

Can we first just say, what a pleasure it was to finally hear a President address Congress without launching into a blatantly political attack on sick and injured people who file lawsuits?  What’s it been, like 8 years of having to put up with that kind of garbarge?  But I digress – sorta.

We’ve written about the need for Obama to clean up the mess Bush made of federal agencies, after having destroyed the regulatory safety structure in this country. 

Here’s another really egregious example that the Washington Post covered yesterday. Seems the Bush administration issued a secret rule that “shut off a source of information last fall about abuse and neglect” in nursing homes, with “no public notice or attention.”  According to the Post, “the rule designates state inspectors and Medicare and Medicaid contractors as federal employees, a group usually shielded from providing evidence for either side in private litigation.…The practical effect is to force litigants to go to greater lengths, including seeking court orders, to get inspection reports or depositions for cases they are pursuing or defending.”

An attorney with L.A.’s National Senior Citizens Law Center was quoted as saying, "This change hurts nursing-home residents and their families by allowing bad practices to be kept in secret by nursing homes and inspectors.… Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could never find out."

Every person with a parent in a nursing home today better get alarmed. The amont of abuse and neglect in nursing homes in the country is mind-boggling, and this outrageous regulation, which makes it more difficult to hold this industry accountable in court, will only make conditions worse. 

Fairness for Grandpa

On Thursday the U.S. Senate Judiciary Committee will be meeting in Washington to discuss the Fairness in Nursing Home Arbitration Act.

Arbitration is a great way for corporations – in this case nursing homes – to get away with wrongdoing and never be held accountable in a court of law.  Listen to this NPR story that focuses on arbitration in credit card contracts, and makes the same point.

Thursday's bill, S.2838 was written to eliminate the growing practice by nursing homes requiring patients to give up their right to trial by jury as a condition for their admittance to a facility.