Articles Posted in Nursing Home Cases

Indiana arbitration agreements are commonplace, and many people agree to the terms without fully understanding what arbitration entails. Arbitration is an out-of-court method to resolve disputes among parties. It is designed to cut costs and allow the parties to reach an agreement without a trial. However, arbitration clauses generally favor the businesses that include them in their contracts. And it is important to know that there are instances where an arbitration agreement is not valid, or arbitration is not appropriate.

For example, in a recent opinion, a state appellate court addressed issues that commonly arise in Indiana nursing home lawsuits where a defendant is trying to compel arbitration. According to the court’s opinion, a nursing facility attempted to compel arbitration after a plaintiff asserted claims of negligence, willful misconduct, elder abuse, and wrongful death against the facility. The plaintiff’s mother was suffering from various ailments and required nursing home care. When the woman entered the facility, the plaintiff signed but did not date an arbitration agreement. Sometime after her admittance, the woman was transferred to a hospital where doctors discovered, among other things, that her leg required amputation. Sadly, the woman died shortly after. The plaintiff filed a lawsuit claiming that the nursing home withheld care, and recklessly disregarded her mother’s health and safety. The nursing home tried to compel arbitration based on the admittance contract.

The defendant argued that arbitration was appropriate because a facility representative witnessed the mother provide the daughter with express authority to sign the agreement on her behalf. The daughter countered that the facility fabricated the circumstances surrounding the execution of the contract. She explained that her mother did not provide her with authorization to sign the agreement on her behalf, and she was not in the room during admittance. Ultimately, the court concluded that the agreement was both procedurally invalid and substantively unconscionable.

Nursing homes have been under fire lately for the poor level of care they provide to residents. Indeed, by some estimates, one in ten nursing home residents suffer some type of abuse or neglect. In theory, the legal system allows for the victims of Indiana nursing home abuse and neglect to sue the offending nursing homes. However, many Indiana residents are not able to do so because they signed arbitration agreements.

An arbitration agreement is a type of contract by which the parties agree not to file a case in court if a conflict within the scope of the agreement arises. Typically, nursing homes present residents with these agreements at the time of admission. While Indiana skilled care facilities will not necessarily force a resident to sign the agreement, it is not often apparent to the resident that they can decline to sign. If valid and enforceable, an arbitration agreement can prevent a nursing home resident from filing a case in court, forcing them to resolve the matter through the arbitration process.

The enforceability of arbitration contracts is currently a hot topic, and the subject of many court opinions. A recent case illustrates how courts analyze and give effect to arbitration agreements. According to the court’s opinion, the plaintiff filed a wrongful death claim against the defendant nursing home after his father died while in the home’s care. Before the plaintiff’s father was admitted into the home, he signed an arbitration agreement. The agreement contained a “delegation provision” under which the specific arbitrator would determine whether any claim fell within the scope of the arbitration clause.

Before any Indiana personal injury case reaches trial, the parties must go through the pre-trial discovery stage. During the discovery phase of a personal injury lawsuit, the parties are required to exchange relevant evidence, including documents, witness names, and other information, that is requested by the opposing party.

Some relevant evidence that is otherwise discoverable, however, is exempt from the rules of discovery if it is covered by one or more privileges. A privilege attaches to a certain class of evidence and is usually based on some public policy concern. For example, the attorney-client privilege protects correspondence between an attorney and his client, based on the idea that a client should trust that he can be honest with his attorney without risking the attorney disclosing the substance of the conversation.

A recent appellate court opinion in a nursing home negligence case upheld the nursing home’s asserted privilege that was based on a state statute.

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Almost all tort actions must be brought within a certain amount of time otherwise the plaintiff is barred from bringing their suit. This is called the “statute of limitations,” and once it has run out, the plaintiff is out of luck. However, an opinion by the Court of Appeals of Indiana recently held that fraudulent concealment can act to toll the statute of limitations.Alldredge v. Good Samaritan Home, Inc.

In Alldredge v. Good Samaritan Home, Inc., the plaintiff group was the family of a woman who was in the care of Good Samaritan Nursing Home. The woman had died, purportedly due to a fall that she suffered because of a pre-existing medical condition. However, several years after the death of their loved one, a former nursing-home employee told the family that their loved one didn’t die because of a fall.

Apparently, the nursing home covered up the fact that the woman actually had been involved in a fight with another nursing home resident, which caused her to fall. When the woman’s family filed suit against the nursing home twenty-three months after they learned the truth, the nursing home claimed that the 2-year statute of limitations had run and therefore the family didn’t have a case.
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The Ways and Means Committee of the Indiana House of Representatives recently met and passed a bill purporting to increase the quality of care in Indiana nursing homes. The bill, which will next move on to the full House of Representatives for a vote, places a moratorium on the building of new nursing homes for one year. Should it pass, the bill will effectively halt new nursing homes from being built for a full year. The original bill suggested a 5-year moratorium on new nursing home development, but that number was lowered to one year in committee meetings.Proponents of the Bill
Proponents of the bill argue that most elderly people want to stay in their home. However, with an increasing number of nursing homes being built, elderly people on the fence about whether or not to move to a nursing home may be convinced to move in, when the decision is actually against what they truly want.

The design of the bill is to keep new nursing homes out of the market for awhile to let the older nursing homes fill up to capacity. Currently, many Indiana nursing homes are not near their capacity which creates financial pressure because they have certain fixed, or overhead, costs that don’t vary according to the number of residents. If nursing homes are allowed to fill up, then nursing homes are able to defray the fixed costs over a larger number of residents, allowing them to become more efficient.
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Recently, a bill was introduced to the Health and Provider Services Subcommittee of the Indiana Senate that would place a 5-year moratorium on the addition of new beds in nursing home facilities across Indiana. According to an article by the Journal Gazette, last week the subcommittee voted 8-4 to send the bill to a full Senate vote where, if it passes, it will move one step closer to becoming law.Senator Patricia Miller, R-Indianapolis, filed the bill because nursing home occupancy rates were at 74%, a number she says is too low. She cites that there are approximately 13,000 empty nursing home beds across Indiana and claims that by preventing the addition of new beds, the nursing home industry will stabilize and become more efficient.

However, by preventing nursing homes from expanding the number of available beds, the law also threatens to decrease competition in the industry because there will be no incentive to fill all the beds. This could result in a decrease in the quality of overall care provided to residents of nursing homes across the State of Indiana.
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The Arc of Northwest Indiana maintains several group homes for the intellectually disabled in Indiana. Generally, these group homes offer a safe and pleasant environment, increasing the quality of the residents’ lives. However, this week, a Post-Tribune story reported that approximately 90 group-home residents were forced to relocate after the homes in which they were staying were decertified by the Family and Social Services Administration (FSSA) and the Indiana State Department of Health.

The group homes were decertified because of reports that the homes were not adequately caring for their residents. Just a few weeks ago, the FSSA and Indiana State Department of Health decertified three of the Arc’s group homes and required the organization make certain personnel changes because the care being provided to the residents was not adequate. A report dated August 16 explained that:

The governing body failed to ensure the facility’s nursing services met the health care needs of clients, [and] the governing body failed to ensure the facility initiated investigations of all allegations of neglect when informed, conducted thorough investigations and/or implemented corrective measures.

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Nursing homes, naturally, attempt to protect themselves from any lawsuit filed against them for the treatment of their residents. The extent of how far courts will consider “arbitration clauses”, clauses forcing any claim to be handled outside of the court system and by a trained paid professional chosen by the home, has been up for serious debate. This April, the United States Supreme Court declined to hear an appeal by nursing homes for serious counts of elder abuse where the lower court awarded damages ignoring arbitration clauses within the patient contracts.Arbitration clauses are often enforced but typically viewed cautiously and with suspicion. Obviously there may be an inherent bias perceived towards the party who is the repeat customer of the arbitrator and in serious cases, courts reserve the right to step in. In the case of Beverly Enterprises, Inc. v. Ping, the nursing home was potentially so negligent that it led to a patient’s death, the representatives of the estate, or family, may still have the right to bring a wrongful death suit for the egregious actions by the home.

One similar case, also declined to be heard by SCOTUS, involved a ruling against an Illinois nursing home for the wrongful death of one its residents. The contract with the family specified that controversies in the amount of $200,000 or more would be bound to arbitration. In ruling to not apply the clause, the Illinois Supreme Court found there was no mutuality of obligation since the daughter signed the agreement as the late mother’s representative and not as a representative to the deceased mother’s family who owns a valid wrongful death claim.

The tragedies of negligent nursing homes is making for big legal news in Indiana. The wrongful death lawsuit filed against Health & Hospital Corporation (HHC) of Marion County and American Senior Communities, LLC (ASC) for their alleged negligent care leading to the death of resident Betty Riley. The cause of death, according to the Coroner’s Office, was medical complications due to the blunt force trauma as a result of a physical altercation with another resident.

The nature of the lawsuit would lead to the family’s potential compensation limited to $300k with the nursing homes only responsible for slightly over half and the other portion being paid from the Indiana Patient Fund.

A report released by the National Center on Elder Abuse found that between 1999-2001 a startling one in three nursing homes in the US received citations for violations that either did or may have caused harm to residents with 10% of the violations resulting in harm or death. The Center stressed that reports by residents places physical abuse as the number one cause of injury.

Incidences of physical abuse by employees, although common, is not the only source of claims against nursing homes. Fighting between residents with failures by the administration to intervene, psychological abuse, neglect, maintenance issues, negligent hiring, improper training, falsifying documents, and other causes of injuries could lead to compensation awards against the home.
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Do non-profit and for-profit nursing homes differ significantly in the quality of care they provide to their residents? In an “Economic Scene” article, the New York Times posed that question last week. The author cited several academic papers to suggest that the profit motive may interfere with the goal of providing top-quality care to nursing home residents, as compared to non-profit facilities. This argument, with its implicit indictment of market-driven healthcare, is sure to provoke a wide range of reactions. Our interest, as lawyers and advocates for nursing home residents, is how a nursing home’s for-profit or non-profit status may affect its view of its professional duty of care. Indiana nursing homes and medical professionals must maintain licenses and meet certain ethical standards in order to practice and do business. It makes no difference, legally speaking, whether they are seeking to make a profit or not.

The New York Times article, written by Eduardo Porter, discusses a study of sedative use in nursing homes by two researchers at the University of Wisconsin-Madison’s School of Pharmacy, Bonnie Svarstad and Chester Bond. They compared the rate at which for-profit, “proprietary” nursing homes prescribed sedatives for their residents to the prescription rate at church-affiliated non-profit facilities. They found that both types of facilities wrote prescriptions at approximately the same rate. They also found that the proprietary facilities prescribed dosages that were four times larger than those at the non-profit homes. They presented their findings in an October 1984 paper entitled “The Use of Hypnotics in Proprietary and Church-Related Nursing Homes,” which is not currently available online.

An economist named Burton Weisbrod cited Svarstad and Porter’s paper in a 1988 book, The Nonprofit Economy. He described the difference between the two types of nursing home as one of fundamental motivation. Because of the profit motive, Weisbrod said, for-profit facilities cut expenses wherever possible, and sedatives cost less than caregivers. The incentive of maximizing profit could therefore lead for-profit nursing homes to favor medicating their residents rather than providing staff for individualized attention and treatment.
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A lawsuit brought under the federal False Claims Act (FCA) by an Indiana resident, involving allegations that an Indiana nursing home had defrauded the Medicaid system, failed to establish that the court had subject matter jurisdiction, according to a recent ruling by the Fourth Circuit Court of Appeals. The court held in United States ex rel. Black v. Health & Hospital Corporation of Marion County that the relator, who filed the qui tam lawsuit on behalf of the United States, did not produce evidence to show that he had originally discovered the allegedly fraudulent acts. Allegations of Medicaid or Medicare fraud are of interest to nursing home negligence attorneys because of the impact fraud can have on the quality of care received by residents. This case primarily demonstrates the complexity of the Medicaid system and the multitude of ways that nursing homes can abide by, or defraud, that system.

The relator, Paul R. Black, reportedly first filed suit against Health & Hospital Corporation of Marion County (HHC), pursuant to the FCA, in U.S. District Court for the Southern District of Indiana in October 2003. When the United States government did not intervene in the suit, he dismissed it without prejudice. He filed the present suit in the U.S. District Court for the District of Maryland in February 2008. The United States has also declined to intervene in this lawsuit.

Black alleges that HHC has used three state-level Medicaid funding systems to present falsified or otherwise fraudulent claims to state and federal Medicaid officials. States may directly reimburse Medicaid providers up to an Upper Payment Limit (UPL) set by the Centers for Medicare and Medicaid Services (CMS), equal to the amount the provider could obtain through Medicare. In order to facilitate reimbursement of providers, CMS allows states to transfer money from local government bodies to the state’s Medicaid fund, in a process known as an intergovernmental transfer (IGT). Finally, CMS may approve expenditures by providers, known as Certified Public Expenditures (CPEs), that allow providers to claim direct reimbursement from federal matching funds. CMS has expressed concerns about the potential for fraud in these systems several times in the past decade.
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