Let’s face it—from complaining about the food or staff in restaurants, to the persons that provide services in our homes—whenever you criticize something or someone, there is always a possible risk of some form of retaliation. In most circumstances, any retaliatory action taken is relatively minor (mishandled food, slow service, sloppy or unfinished repair-work etc.). For the residents of nursing homes, though, the consequences of making a complaint, whether formal or informal, can be significant. As nursing home abuse and negligence lawyers, we are commonly asked whether the resident should consider changing facilities if they have, or intend to, report a complaint, file a grievance and/or initiate a claim.
The attorneys of Zneimer & Zneimer, P.C. recognize that a lot has changed since the 1961 establishment of the Senate Special Committee on Aging, and the subsequent initiation of Medicare in 1965. Continuing acknowledgement of the rising population of individuals over the age of 65, subsequently led to policy reform under the Reagan administration with the 1987 enactment of the Nursing Home Reform Act (NHRA). Although there has been some policy reform affecting standards of nursing home care since the NHRA, many argue that only minimal improvement has occurred. Our nursing home liability attorneys understand that significant policy reform addressing matters concerning our nation’s elders should occur more than every couple of decades.
As reported by the Illinois Times, “A Chicago Tribune investigative series stretching from 2009 to 2011 uncovered several problems in nursing homes in Chicago and surrounding suburbs. Problems included rapes, beating deaths, unnecessary dispensing of drugs, corruption, theft, and a state practice of housing mentally-ill patients in nursing homes instead of mental hospitals.” In response to this investigation, Illinois Governor placed into action a Nursing Home Safety Task Force, aimed at addressing continuing problems of abuse and neglect affecting Illinois nursing homes. This Task Force provided recommendations which assisted in reform of the outdated Nursing Home Reform Act, which until such recent amendments, arguably reflected only minimal improvement since its 1979 enactment. Our team of nursing home injury attorneys feel that modifications in Illinois regulations concerning nursing homes was certainly well overdue.
With such a profound increase in our nation’s elderly population, our nursing home attorneys are concerned over the manner in which these individuals are being cared for. According to a 2010 study, Illinois ranks the fifth highest in our nation’s population of elderly residing in nursing home facilities. Based upon the same survey data, provided by Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services, it was determined that in 2010, 95.4% of nursing home facilities presented evidence of deficiencies, is a term “given to nursing facilities for problems which can result in a negative impact on the health and safety of residents. The Centers for Medicare and Medicaid Services define “actual harm” as a “deficiency that results in a negative outcome that has negatively affected the resident’s ability to achieve the individual’s highest functional status. “Immediate jeopardy” is defined as a deficiency that “has caused (or is likely to cause) serious injury, harm, impairment, or death to a resident receiving care in the nursing home.” For more information providing nursing home data for Illinois, and other states, please visit http://www.statehealthfacts.org/compare.jsp.
The decedent, Joyce Gott suffered a nursing home injury and subsequently died. She was admitted to Odin Healthcare Center, a nursing home in Odin, Ill., in 2005 and again in 2006. Joyce had signed an arbitration contract with the nursing home, which provided that for any amount in controversy of at least $200,000, “they shall submit to binding arbitration all disputes against each other and their representatives, affiliates, governing bodies, agents and employees arising out of or in any way related or connected to the Admission Agreement and all matters related thereto including matters involving the Resident’s stay and care provided at the Facility, including but not limited to any disputes concerning alleged personal injury to the Resident caused by improper or inadequate care including allegations of medical malpractice; any disputes concerning whether any statutory provisions relating to the Resident’s rights under Illinois law were violated; any disputes relating to the payment or non-payment for the Resident’s care and stay at the Facility; and any other dispute under state or Federal law based on contract, tort, statute (including any deceptive trade practices and consumer protection statutes), warranty or any alleged breach, default, negligence, wantonness, fraud, misrepresentation or suppression of fact or inducement.”
After Joyce’s death, Sue Carter, acting as the special administrator for the estate, filed a two-count complaint, alleging a survival action under the Nursing Home Care Act and wrongful death under the Wrongful Death Act. Deciding whether the arbitration clause is enforceable, The Illinois Supreme Court in Carter v. SSC Odin Operating Co., No. 113204 (Sept. 20, 2012) ruled that the arbitration clause is only enforceable with respect to the survival action, but not to the wrongful death action. As the estate administrator was not a party to the arbitration agreement and since the wrongful death action accrues only when the nursing home resident dies and is for the benefit of the resident’s heirs, the estate administrator cannot be compelled to arbitrate the wrongful death action.
The nursing home has argued that the Federal Arbitration Act preempts the lawsuit and that the estate administrator must arbitrate both, the survival action and the wrongful death action.
Over the weekend 80 year old Anibal Calderon was beaten to death at an Oak Park nursing home. Police said that another resident of the Oak Park nursing home is responsible. Police are still investigating the incident which occurred at the Oak Park Healthcare Center located at 625 N. Harlem Avenue in Oak Park. A nurse found Anibal Calderon lying unconscious Sunday night in the nursing home’s Alzheimer’s and dementia ward. He was taken to Rush Oak Park Hospital and was later transferred to Rush University Medical Center. He later died early Tuesday. Police believe a 66 year old man, who is also a resident at the Oak Park Healthcare Center, beat Calderon in the head with an object. Police say the incident began with an argument between the two residents and the 66 year old man ended it by beating 80 year old Calderon. An autopsy report determined Calderon died from head injuries and blunt trauma from an assault. Anibal Calderon’s death has been ruled a homicide by the Cook County Medical Examiner’s Office. Incidents such as these can be prevented if nursing homes take the necessary precautions to keep their residents safe. Victims should understand their legal rights. Our expert attorneys Zneimer & Zneimer p.c. can help victims know their rights. If you or a loved one experienced a similar situation please call our office and schedule a free personal injury consultation.
Chicago Tribune Deborah L. Shelton reported that experts from the University of Illinois at Chicago issued a scathing report about the dangerous conditions of pediatric and adolescent psychiatric hospital Hargrove. This report is eerily similar to the one released on March 30, 2009, slamming the conditions at Riveredge Hospital and other psychiatric facilities owned or run by Psychiatric Solutions, and to another report released in May 2011 documenting inadequate care in Lakeshore Hospital. Back in 2009 as well as in the current reports, the UIC experts reveal that the most vulnerable patient population, pediatric and adolescent psychiatric patient are subjected to sexual assaults, physical attacks, threats, and unacceptable conditions.
According to the current report between December 2010 and mid-June 2011, there were over 100 cases of children and adolescent psychiatric patients subjected to physical attacks, threatening behavior, and sexual assaults at Hartgrove. The report on psychiatric care in 2009 on Riveredge and Psychiatric Solutions identified a similar longstanding pattern of egregious quality failures, failure to protect patients from sexual abuse, failure to provide patient care in a safe environment, failure to ensure patients are adequately monitored, failure to ensure adequate staffing for patient care, failure to adequately train and supervise staff. The current report on Hartgrove paints a similarly unacceptable picture of vulnerable population placed at unacceptable risk. The reports also reveal that the hospitals are understaffed or are staffed with unqualified personnel. Most of the children in these facilities are there because they are danger to self or others and need specialized care. When the hospitals hire personnel with lack of qualifications the hospitals put the children and staff at risk. Our law firm represents victims of psychiatric and hospital negligence in cases involving sexual assaults or inadequate supervision in psychiatric facilities. Sexual assaults are usually a result of inadequate staffing, improper supervision, or failure to follow physician-ordered precautions and observation levels. Personal injuries that result from inadequate staffing are easily preventable. Keeping psychiatric patients safe should be a priority to any mental health hospital. Patient safety is a prerequisite of any therapeutic environment for a psychiatric patient. Failure to prevent assault and abuse of psychiatric patients represents gross negligence and should not be tolerated.
Illinois Governor Pat Quinn announced the formation the Nursing Home Safety Task Force in response to a three-part Chicago Tribune investigation of nursing home abuse entitled “Compromised Care”, which reported on cases of alleged serious abuse of elderly and disabled nursing home residents.
The Nursing Home Safety Task Force will be headed by Michael Gelder, a senior advisor to Governor Quinn on health policy. The Task Force will include representatives from the Department of Public Health, Department of Healthcare and Family services, Department on Aging, Department of Corrections, Department of Human Services and the Illinois State Police.
According to a new federal report released by the General Accounting Office, Illinois has the nation’s second highest number of nursing homes that perform “most poorly” on quality of care measures. The newly formed Task Force will be examining current policies and procedures for ensuring the safety of residents. Governor Quinn has promised to ensure that Illinois’ nursing homes “offer a safe haven for residents, many of whom are among our most vulnerable and needy.” The Governor says the newly formed Task Force will be addressing the issue of nursing home abuse and neglect “with all deliberate speed.”