Articles Posted in Nursing Home Abuse & Neglect

In my role as a Massachusetts nursing home abuse lawyer, I see many, many examples of negligence, including in the healthcare field. When I do, I just shake my head, because I sometimes cannot understand what goes on the minds of the people who work in nursing homes. All too often, I can only stand back and say to myself, “What were they thinking?”

All too frequently, nursing home residents – who are elderly, sick, and usually not ambulatory – are left alone, when the entire purpose of putting them in a nursing home in the first place is to protect them and safeguard them from any harm. Leaving them alone to fend for themselves simply defeats the entire purpose of putting them into the nursing home.

A recent case for Massachusetts nursing home abuse illustrates a situation of numerous, terrible errors that resulted in the unfortunate death of an elderly woman who should have never have been left alone. Here’s what reportedly happened, and it is a tragedy.

There was a recent case settlement involving Massachusetts nursing home neglect and abuse, which should serve as a cautionary warning to anyone who has a loved one living in a nursing home anywhere. It isn’t a pretty story.

A woman was admitted to a Massachusetts nursing home in August of 2004. Two months later, she was found in bed with a spiral fracture of the left tibia and a fracture of the left fibula. Since she was found in her own bed, how this injury could have happened was a mystery, to say the least. An inquiry determined the already obvious conclusion that the patient could not have produced these injuries herself. Despite the inquiry, no definitive alternate explanation could be produced. File that under “Stinks to the high heavens, but we can’t prove who did it.”

The fractures required hospitalization and casting of the woman’s leg. When she was returned to the nursing home, she very predictably became immobilized due to her leg being in a cast. As a result of this immobility, she developed a pressure ulcer on her lower back, and also very predictably, a urinary tract infection. She also suffered from dehydration. If the average person knew how common and predictable this downward series of events is in a nursing home environment, they’d become quite upset. It’s how 95% of nursing home patients eventually die. It’s awful – both to see and to describe. I can only shudder to think of what it would be like to actually suffer through this kind of experience. I can’t imagine that most people would not prefer death long before that happens.

File this case under “Be careful what nursing home you choose for your loved ones.”

Here’s the story. An 82-year-old woman, who was confined to a wheelchair, and also had advanced dementia and impaired decision-making abilities, was admitted to a nursing home for care.

While there, staff members became increasingly suspicious that the woman was receiving inappropriate physical contact from a younger male resident. Some witnessed the young man touching her and having inappropriate physical contact with her. However, staff members who witnessed the improprieties were allegedly told to literally “keep their eyes shut.” As it turns out, the young male resident sexually molested the woman on several occasions.

If you have placed someone that you love in a nursing home, signed a healthcare proxy on their behalf, and later decide you want to sue in court for Massachusetts nursing home abuse , or file a Massachusetts wrongful death suit, this blog post is for you. That’s because many Massachusetts nursing home contracts require the patient or the patient’s representative to submit to binding arbitration (outside of court) in the event of a legal dispute, instead of allowing the plaintiff to file a lawsuit in court, and argue his or her case to a jury. These are known as “binding arbitration clauses.” Are they always valid? No.

A recent court decision in Massachusetts illustrates that in some cases, these binding arbitration clauses in nursing home contracts can be defeated, allowing a plaintiff to bring his or her case in court, to a jury. This is important, because most nursing homes compel you to go to binding arbitration, waiving the right to a jury trial.

Here’s a brief version of the case that defeated such a nursing home binding arbitration clause. A man named Salvatore Licata admitted his mother to a hospital, as she was suffering from Alzheimer’s-type dementia. On the day after the hospital admission, Licata’s mother, Rita, signed a Massachusetts Healthcare Proxy appointing her son as her healthcare agent, with the authority to make all healthcare decisions for her, should a physician determine that she lacked the capacity to do so on her own.

Scientists at the Institute for Aging Research at Hebrew SeniorLife in Boston, Massachusetts released a study today that indicates that nursing home patients who are given SSRI antidepressants are at increased risk of suffering falls. SSRI’s are a class of anti-depressants known as Selective Serotonin Reuptake Inhibitors, which in general act to increase levels of serotonin in the brain. Common names for these drugs include Prozac, Paxil, Lexapro, Celexa, and Zoloft.

The study, published in the Journal of Gerontology: Medical Sciences, examined 1,181 cases of nursing home falls. The study reportedly discovered a five-fold increase in patient falls within 48 hours of receiving a new SSRI, or being administered higher doses of an existing SSRI that they were already taking. However, the rate appeared to decrease each day after the prescription change. In a press release, Dr. Sarah D. Berry, a scientist at the Institute for Aging Research of Hebrew Senior Life and the lead author of the study, said that “Our results identify the days following a new prescription or increased dose of a non-SSRI antidepressant as a window of time associated with a particularly high risk of falling among nursing home residents.” Berry theorized that the increased risk of falling after receiving an SSRI might be due to coordination problems caused by the medications. Berry commented that the benefits of these medications may still outweigh the increased risk of falling, so long as patients are closely monitored in the days immediately following administration of the drugs.

These findings are important because far too many nursing home patients are prescribed antidepressants, because they exhibit symptoms of depression. Ask yourself: What nursing home resident have you ever met who wouldn’t have reason to be depressed? If the average American knew what life (or more accurately, “existence,”) was really like in a nursing home, they’d be shocked. The response of most Primary Care Physicians and nursing home medical directors to dealing with the predictable depression that results when a patient is placed in a nursing home, is to put the patients on yet another medication – antidepressants. This practice has even increased in the recent past, now that medical studies have proven that administering anti-psychotic medications to nursing home residents suffering from dementia produces an increased risk of death to patients suffering from dementia. For years, patients suffering from senility and Alzheimer’s Disease were routinely prescribed anti-psychotics, due to the symptoms the disease would cause. Finally, medical studies proved that giving anti-psychotic medications to dementia patients could be fatal, so doctors switched over to prescribing these same patients antidepressants. Now, new research shows that antidepressants can cause elderly patients to lose their balance and suffer debilitating falls.

Nursing home abuse and neglect is, tragically, still a “dirty little secret” for most of society. While public consciousness has been raised in the past two decades due to the efforts of plaintiffs’ tort lawyers and brave families, I don’t think enough people, or enough media, truly appreciate just how pervasive this problem really is. Massachusetts nursing home abuse and neglect (and nursing home abuse that occurs everywhere) is caused by the willingness of far too many nursing home companies, to allow the safety and well-being of their paying residents to suffer, in the name of maximizing their profits.

Making matters worse, corporations that own nursing homes in Massachusetts still cannot be held criminally responsible for the acts of their employees. Note: I am talking here about a corporation being held responsible for criminal acts, not specific individuals. While a specifically named nursing home employee who is accused of committing a criminal act against a nursing home resident, such as an assault and battery, can be criminally convicted, the corporation still, as of this time, cannot be.

In my view as a Norfolk County Massachusetts nursing home abuse lawyer, that itself ought to be a crime. The Massachusetts Attorney General tried to change that law in a novel criminal indictment a few years ago. Sadly, that noble effort did not succeed. The indictment charged a parent corporation that owned a nursing home with involuntary manslaughter and criminal neglect, based on its collective knowledge of the conduct of several of the corporation’s employees. What made the case novel was that the indictment did not single out any one employee of the corporation for criminal acts — instead, the corporation itself was indicted. This legal approach to indicting a corporation for the criminal acts of its unnamed employees, had never before succeeded. The case was Commonwealth of Massachusetts vs. Life Care Centers of America. This case represented the first attempt by the state of Massachusetts to criminally indict a corporation for manslaughter and neglect in the death of a nursing home resident.

My regrets over not having posted for awhile here, but let’s get back to things today:

Normally, as this is blog is about Massachusetts personal injury cases and Massachusetts tort law, I write about plaintiffs’ civil justice issues occurring primarily in this state. However, a recent case verdict out of the state of California offers some instructive points on how personal injury plaintiffs can achieve far better legal and financial results with a small firm, than with a large law firm. On this very point, by the way, visit the “About The Firm” tab at my web site Home Page. See the article. “The Urge To Merge: Bad News.” I think you’ll find it interesting.

Two small plaintiffs’ law firms in California teamed up to obtain a $29 Million verdict against a corporation who operates a chain of 33 nursing homes across California and Utah, “Horizons West,” in an all-too-familiar case of nursing home negligence and abuse. The plaintiff was the estate of a 79 year-old woman, an Alzheimer’s Disease patient, who died after not receiving prompt medical treatment for eight days after she fell and fractured her hip. Aside from that untreated injury, the patient also developed a bed sore during those eight days, which was also listed as a cause of death on her death certificate. The plaintiffs’ lawyers, both essentially solo practitioners, alleged that the defendant nursing home intentionally understaffed the facility, or kept it at a bare minimum relative to the number of patients residing there, all to maximize its profits. Any surprise there? I’ve been writing and speaking about how corporations do this to consumers, patients, and all kinds of people, for over 20 years now. (If anyone still doubts that, take a look at my last post about BP and the Gulf oil spill.)

In my previous post, I reported on the fact that Johnson & Johnson has been dragged into court by the United States Attorney in Boston, accused of hatching an elaborate scheme to press nursing home doctors to prescribe J&J’s anti-psychotic drugs, including Risperdal, to Massachusetts nursing home residents who were not suffering from mental illness or psychosis, but only dementia. Critically, it is widely known in the medical and geriatric care communities that the use of anti-psychotic medications in patients suffering from dementia, doubles the risk of death. The “marketing” scheme was a twisted effort by J&J to increase sales of their anti-psychosis drugs even higher than the $100 million in annual sales they were previously enjoying.

Antipsychotics were approved by the U.S. Food and Drug Administration (FDA) to treat people with severe mental illness – such as schizophrenia. While many of these medications have brought relief to severely mentally ill patients, and while they have their valid place in medical practice, in general they produce horrible side-effects. These unavoidable side effects include:

• Dystonia – A neurological movement disorder in which sustained muscle contractions cause twisting and repetitive movements or abnormal postures. Essentially, this condition can reduce someone to an involuntary mass of body spasms, or twist you into distorted postures.
• Parkinsonism – Muscle rigidity and muscle tremors; Essentially, this can reduce the body or parts of it, to being as stiff as a board.
• Akathisia – A syndrome characterized by unpleasant sensations of “inner” restlessness that manifests itself with an inability to sit still or remain motionless. This condition can produce symptoms ranging from anxiety, to a complete inability to still or stand still.
• Tardive dyskinesia, A condition in which the sufferer may show repetitive, involuntary, purposeless movements often of the lips, face, legs, or torso. These involuntary, purposeless movements usually occur in the face and lips, reducing someone’s expression to a mass of jerking tics.
• Pancreatitis – An extremely painful and emiserating condition, leaving one’s midsection enflamed, swollen, and producing severe fevers.
• Seizures – Causing patients to be constantly exposed to horrid and frightening neurological attacks, never knowing when the next one is to come – not to mention the brain damage that can result from seizures.
• Diabetes – Placing patients at risk of losing their limbs due to amputations often necessitated by the disease.
• Neuroleptic malignant syndrome, in which the body’s temperature regulation centers fail, resulting in a medical emergency, as the patient’s temperature suddenly increases to dangerous levels. Essentially, the patient is subjected to sudden, high-grade fevers that are usually witnessed in the worst if influenza infections.

The list of these well-known side effects goes on and on. Now you know why it’s widely estimated that approximately two-thirds of mentally ill patients who are prescribed many anti-psychotics, stop taking them: They’re known as the “Treatment that’s worse than the disease.” And all of the above side-effects, and more, pale in comparison to the most widely-known side-effect of these drugs: That when given to patients suffering from dementia, they double the risk of premature death.

So how were J&J, and their criminal co-conspirator OmniCare, able to do this? Because as with many drugs approved by the FDA to treat specific illnesses and conditions, it is nonetheless legal for doctors to prescribe drugs, including anti-psychotics, “off-label” for other purposes. While that practice may be strictly legal when engaged in by individual doctors with individual patients, J&J engaged in a widespread, full-blown campaign to aggressively market their drugs to nursing homes as being appropriate, even desirable, for use with patients not suffering from mental illness, but merely dementia. Under J&J’s and OmniCare’s scheme, J&J quietly (and illegally) paid OmniCare millions in kickbacks to push these drugs to nursing home doctors. Once OmniCare sold these antipsychotics to nursing homes, it actually then filed for reimbursement from Medicaid for purchasing these drugs from J&J. Medicaid is the joint federal-state health care program for the poor – which pays for nursing home care for many poor seniors.

I trust you see the added hook here for OmniCare – not only did this scheme allow them to grossly increase their sales of these anti-psychotic drugs to nursing homes, but the fact that they were selling to nursing homes that cared for many poor elderly patients, allowed OmniCare to then bill Medicaid for the cost of buying these drugs from J&J in the first place, (who also paid OmniCare kickbacks for purchasing the drugs from them.) End result: J&J, the drug manufacturer, massively increased sales of their anti-psychotic drugs to their distributor, OmniCare (from $100 million to $280 million.) OmniCare received millions of dollars in kickbacks from J&J on the front end, for buying higher amounts of these drugs from J&J, and then OmniCare illegally billed Medicaid on the back end for reimbursement of the cost of purchasing the drugs from J&J, since the drugs were administered to low-income or indigent nursing home residents.

And the thousands of powerless Massachusetts nursing home residents who were needlessly pumped full of these mind-altering anti-psychotic drugs? There were less than nothing; an afterthought in this twisted scheme. As to just how many Massachusetts nursing home residents were victimized in the process of bloating both J&J and OmniCare’s profits, consider this: The Massachusetts Attorney General reported that a whopping 28 per cent of Massachusetts nursing home residents were given these anti-psychotic drugs, last year alone. Of that figure, 22 per cent were not mentally ill or did not have a medical condition that warranted such extreme treatment. This rate was the 12th highest in the nation.

Pretty sick, isn’t it? Yet nothing new for huge corporations like this.

This sad and sick story illustrates two key points: 1) Massachusetts nursing home abuse and neglect is rampant – far more common than most people can imagine – and it’s not always committed by a cruel or thoughtless health aide, acting alone. In this case, the abuse was actually aided and abetted by nursing home doctors who didn’t question either J&J’s or their distributor’s (OmniCare’s) claims about the use of these anti-psychotic drugs with patients who were not suffering from mental illness or psychosis. 2) This twisted story illustrates how Massachusetts and the rest of this country must remain vigilantly opposed to big business and corporate efforts to enact “tort reform”. As I’ve said before, “tort reform” is nothing more or less than an effort to re-write liability laws, to allow big business and others to commit wrongdoing, and be shielded from the lawsuits that would hold them accountable. Thankfully, we haven’t reached that stage yet in Massachusetts, which is one reason why nursing homes and their doctors will think twice about engaging in such irresponsible and unethical conduct in the future: Because they’ll pay in court if they don’t.
Continue reading

This case is filed under “Nursing Home Abuse and Neglect” on this blog for a good reason: That’s exactly what it is – except that the abuse wasn’t committed by a lone employee of a single nursing home, who ended up abusing patients. It was committed by a conspiracy among a multi-billion dollar pharmaceutical firm, dozens of separate nursing homes, and doctors and nurses also. If true (and to date, I see little evidentiary reason not to believe the allegations) it is a sickening story of corporate and individual greed, compounded by some of the worst examples of human cruelty to the most frail and forgotten members of society – nursing home residents.

By all credible accounts, the story seems to have unfolded as follows: Pharmaceutical giant Johnson & Johnson apparently paid tens of millions of dollars to a firm called OmniCare, which although most people have never heard of, happens to be the nation’s largest provider of pharmaceutical drugs to nursing homes. The illicit payments were designed specifically to entice and assure that the company (OmniCare) aggressively and intensively pushed several of its drugs, particularly the powerful antipsychotic drug Risperdal, to nursing home doctors, using aggressive rebate programs and other financial incentives. The scheme is alleged to have lasted from 1999 to 2004. What’s the problem with that, one might ask – don’t some nursing homes need antipsychotic medications? Yes, but the twisted cruelty and malignancy here, is that Johnson & Johnson and OmniCare aggressively waged a campaign with nursing homes and their doctors to prescribe antipsychotics such as Risperdal, to patients suffering from dementia – not psychosis. J&J marketed their antipsychotics as a legitimate, valid medication to “sedate and control” patients suffering from dementia, when it was originally designed and approved to treat severe mental illness.

That twisted marketing campaign resulted in J&J nearly tripling sales of its antipsychotic drugs to OmniCare, from approximately $100 million just before the scheme began, to in excess of $280 million when the operation was discovered by government investigators in 2004. Imagine – – $100 million in sales (of these drugs alone) was not enough for J&J: They concocted this twisted scheme to fatten their profits even more, all the while risking the health and lives of tens of thousands of helpless nursing home patients. It is well- known in the medical profession that prescribing antipsychotics to patients suffering from dementia more than doubles their risk of death due to these medications. But that didn’t phase J&J, nor OmniCare, in their insatiable quest for more profits.