Kentucky Injury Lawyer Blog

Arbitration clauses have become increasingly common in recent years. It is quite possible that your cell phone carrier, bank, and even employer have you sign agreements that contain mandatory, binding arbitration clauses. These clauses force the consumer to give up their right to a jury trial and to have all disputes sent before an arbitrator of the company's choosing.

Increasingly arbitration clauses are being included in nursing home contracts that require patients or loved ones to agree to arbitration for any and all harms that occur while they are in the nursing home. The West Virginia Supreme Court of Appeals recently reviewed several cases that all involved nursing homes that allegedly caused the death of a nursing home resident. In each case, a representative for the resident had signed an agreement at admission that contained a clause stating that any disputes arising from negligent treatment by the nursing home would be submitted to arbitration.

The Court held that the West Virginia Legislature intended for the right to a civil action in court to be unwaivable for nursing home residents. The Court went on to say that many of the arbitration clauses at issue were "unconscionable and unenforceable" as a matter of law. The Court's holding also pointed out that arbitrations allow nursing homes to keep their negligence and violations out of the public eye. Hopefully, other courts will follow suit and hold arbitration clauses in the nursing home setting unenforceable.

Out of 109 nursing homes in Kentucky checked by state inspectors during the third quarter of last year, 18 percent - 20 nursing homes -- had 10 or more deficiencies.

The data -- obtained through an Open Records Request by the statewide advocacy group, Kentuckians for Nursing Home Reform -- is the latest information available at this time on nursing home inspections in Kentucky.

Routine inspections of nursing homes are made about once a year. According to a federal Web site, the average number of deficiencies for nursing homes in Kentucky is six. This latest report showed that 42 nursing homes in the state had more than six deficiencies.

The 20 nursing homes inspected in the third quarter of 2010 that had 10 or more deficiencies were:

· Sunrise Manor Nursing and Rehabilitation Center, Somerset (20 deficiencies)
· Parkview Nursing and Rehabilitation Center, Pikeville (20)
· Bluegrass Care and Rehabilitation Center, Lexington (20)
· Pineville Community Hospital, Pineville (17)
· Lexington Country Place, Lexington (16)
· Rockcastle Health & Rehabilitation Center, Brodhead (15)
· Green Valley Health & Rehabilitation Center, Carrollton (14)
· Florence Park Care Center, Florence (13)
· Glasgow Health & Rehabilitation Center, Glasgow (12)
· Breckinridge Memorial Nursing Facility, Hardinsburg (11)
· Gallatin Health Care, Warsaw (11)
· Corbin Nursing Home, Corbin (11)
· Hart County Health Care Center, Horse Cave (11)
· Hurstbourne Care Centre at Stony Brook, Louisville (10)
· Christopher East Health Care Center, Louisville (10)
· Salyersville Health Care Center, Salyersville (10)
· Northpoint/Lexington Healthcare Center, Lexington (10)
· Jackson Manor, Annville (10)
· Woodcrest Manor Care Center, Elsmere (10)
· Hazard Nursing Home, Hazard (10)

On the plus side, however, four nursing homes inspected had no deficiencies. They were:

· Belle Meade Home, Greenville
· The James B. Haggin Memorial Hospital, Harrodsburg
· Loretto Motherhouse Infirmary, Nerinx
· Fordsville Nursing and Rehabilitation Center, Fordsville

More detailed information on what the deficiencies covered is available on the federal government's web site.

The state Office of Inspector General - at the request of Kentuckians for Nursing Home Reform -- also is beginning to publish the results of inspections on their web site. Also on the website, another request by advocates was agreed to by the OIG, and they are now publishing ownership information for each nursing home.

A Paintsville nursing home has been cited in connection with the death one of one of it's residents.

Mountain Manor nursing home in Paintsville was slapped with a type A citation, the state’s highest citation, by the Cabinet for Health and Family Services’ Office of the Inspector General, after a resident at the facility died following a fall.

This citation indicates that a resident’s life or safety had been endangered because of violations of state regulations.

The nursing home received the citation on Nov. 3, while the patient in question was admitted to the facility on Oct. 14.

The Lexington-Herald Leader, quoting from the citation, which did not include the name of the patient, reported that it also alleged that on Oct. 15, the resident was “assessed by the staff to be at high risk for falls” and that staff put side rails on the the patient’s bed.

On Oct. 16, the resident reportedly tried to get out of the bed by moving around the side rails, and a doctor at the facility wrote an order for a bed alarm to be implemented in case the patient to try make a similar effort.

The patient continued to attempt to get out of the bed until, on Oct. 18, the resident was found on the floor of his room. Records indicated that the patient had broken bones around his eye and also broken six ribs, later dying from the injuries on Oct. 26.

The Herald-Leader reported that the owner of the nursing home is listed as Paintsville Investors, with state records showing the managers of Paintsville Investors as H.D. Fitzpatrick Jr. and Jack Absher.

Vanessa Cantley, attorney and partner at Bahe Cook Cantley & Nefzger, is an attorney experienced in nursing home abuse and neglect cases. She comments: "This is a terrible tragedy, and one that easily could have been prevented had the rules of patient safety been followed. A citation against this facility is not enough. The family of this victim has the legal right to file a wrongful death case on their loved one's behalf against Mountain Manor for it's negligence. No one deserves to be treated this way, particularly our most vulnerable citizens. We must work to ensure this doesn't happen to another resident at Mountain Manor."

For more information on the rights of victims of abuse and neglect in nursing homes, you can contact Vanessa directly here.

Corporate-run nursing homes across the country have started requiring that patients (or their loved ones) agree to mandatory arbitration clauses before he or she can be admitted to a nursing home. This clause requires that you or anyone on your behalf must settle all disputes that you have with the nursing home or its staff through an arbitration process. Individuals unknowingly sign these clauses which ultimately results in their Constitutional right to jury trial being extinguished. Even worse, often times the arbitrators used are hired by the nursing home itself - so you can imagine where the arbitrators' loyalties lie.

However, help may be on the way in the form of the Arbitration Act of 2011. The proposed Arbitration Fairness Act would ban mandatory these types of arbitration clauses in the employment, consumer, and civil rights settings. If the Arbitration Act of 2011 is passed, nursing homes would no longer be allowed to make the acceptance of a mandatory arbitration clause a requirement to admission. The passage of this bill would be a huge step forward in protecting patients and their families of being taken advantage of in a time of need. To see the text of the Act click here: http://www.govtrack.us/congress/billtext.xpd?bill=s112-987

The former operator of the Golden Years personal care home, James F. “Chum” Tackett, has pleaded guilty to charges of theft, exploitation of a vulnerable adult, and income tax fraud. You may remember Mr. Tackett and the Golden Years facility from our earlier blog, discussing its closure by state officials earlier this fall. The charges included allegation of stealing more than $300,000 from residents and their families. The money was used to buy multiple vehicles, including a GMC Hummer. Attorney General, Jack Conway, who’s office played a part in closing the facility was quoted as saying “While Mr. Tackett was living a lavish lifestyle, the residents at Golden Years were suffering and his personal care home was falling into disrepair and financial ruin….”

The stolen money from the residents at the personal care home was typically funds that the seniors received from federal disability, Social Security, pension funds, and other state money used to pay for their stay at the home. Much of that money went for covering the cost of the residents stay, but they were also supposed to get a monthly stipend, which Tackett apparently also stole from them.

Hopefully, this means the end of this facility that has neglected residents for years. In 2007, the facility was cited by state investigators because Tackett physically abused a resident. After he was ordered to leave the facility and have no other contact with residents, the facility was cited again for his continued involvement and proximity to residents.

While residents of personal care homes often have more freedom and independence that those in nursing homes or other skilled nursing facilities, they are still the target of abuse and neglect in some instances. The facilities and their employees still owe these residents a duty of care to protect them from harm and provide them with a place that is safe to live. If you or a loved one have suffered at the hands of a personal care home or other facility that houses and cares for the elderly, you need an attorney that is skilled and handling these types of complex cases.

The Lexington Herald-Leader has reported on my verdict in a nursing home negligence trial returned last Monday, October 24, 2011 after a 5-day trial. While some of the comments to the article are disappointing, I always remember that a jury of 12 citizens are the only ones who heard ALL of the evidence and, thus, have the important task of speaking for the community. The jury in this case should be proud. They listened closely to all the evidence for five long days and rendered a just verdict that I believe will make nursing home residents in Lexington, Kentucky much safer.

To read the article in the Lexington Herald-Leader, click here.

I am proud to report that on October 24, 2011 a Fayette County, Kentucky jury handed down a $1,027,473.48 verdict for my client, Irene Hendrix, in a case against the corporate former owners of Cambridge Place Nursing Home in Lexington.

Irene, then 88, was a resident of Cambridge Place from April 2008 to January 21, 2009. She suffers from severe Alzheimer's dementia and other ailments. She was prescribed a merry walker (rolling walker with a seat) to move around the facility. We proved that for 8 months, she wandered aimlessly and unsupervised around the nursing home, in and out of other residents' rooms, banging into things and causing bruises and skin tears.

While Cambridge Place assessment staff recognized that Irene needed constant supervision due to a myriad of medical conditions, including vision problems, cognitive impairment and wandering, they failed to provide her constant supervision or transfer her to a place that could provide it. As a result, on January 21, 2009, Irene wandered into an unlocked vacant resident room that the facility was using for storing equipment and items for the building's refurbishment. Her merry walker got caught up in the equipment and she fell head first onto the hard floor, still seatbelted into the walker. She suffered broken bones in her face, a crushed nose, a laceration above her eye and of her lip, and a brain injury which caused bleeding in her brain.

While Irene already suffered from dementia, prior to the fall and resulting brain injury, she could still recognize her children and share memories with them. Her family testified that after the fall, she was never able to recognize them ever again.

The jury allowed the full amount of medical expenses claimed, $27,473.48, and an additional $1 million for mental and physical pain and suffering and anguish.

I was incredibly honored to have an opportunity to represent Irene and proud of the jury for returning a just verdict in this case.

If you suspect that a loved one is being abused or neglected in a nursing home, I would be happy to discuss the matter with your family.

The Kentucky Attorney General’s Office and Cabinet for Health and Family Services has finally stepped in to close the Golden Years personal care home after years of substandard living conditions, patient abuse, fraud, and outright theft. The trouble really started in 2007 when the former operator of the facility, James “Chum” Tackett, was involved in a physical altercation with a resident. But it was the allegation that Tackett stole more than half a million dollars from the facility and its residents that ultimately led to criminal charges. In 2009, another citation from the state was levied against the facility related to Tackett having inappropriate contact with residents. The Circuit Court in Letcher County appointed another person to try and fix the facilities image and service to its residents, but the Attorney General and CHFS have apparently decided that the changes were not sufficient and are shutting down the facility.

According to the Courier-Journal, personal care homes house roughly 6,500 residents in nearly 80 facilities around Kentucky. They are supposed to provide housing for poorer, elderly people who have medical issues preventing them from doing all of their activities of daily living on their own, have a fixed income, and usually have no other means of support. They provide meals, bedrooms, resident supervision, and personal activities like dressing and bathing. However, concerns from local watchdog groups like Kentucky Protection and Advocacy state that these facilities serve to isolate, not help, residents and that many residents would like to explore other living options. Compounding matters is the high incidence of mental illness in the homes. The concerns are certainly justified after one home in Northern Kentucky allowed a resident to wander off of the premises. The man was later found dead.

Continue reading "Personal Care Home in Letcher Co. Closed After Years of Problems, Failing Patients" »

The estate of a Developmental Center resident who died in December 2009 has filed a wrongful-death lawsuit; the claim is somewhat bizarre and, if proven true would have to constitute one of the worst assisted living abuse cases in recent memory as the suit alleged that the gentleman in question froze to death while in the state-run facility’s care as a result of neglect and abuse.

The suit alleges that 58-year-old James Hollis Jr., died Dec. 11, 2009, after he was taken to Virtua Memorial in Mount Holly with hypothermia, a broken hip and several broken ribs.

The lawsuit said staff at the Route 72 center failed to recognize that Hollis, who had been developmentally disabled since birth, had a broken hip that morning when he awoke and also had difficulty dressing and standing up. Hollis was found minimally responsive, unable to stand, hypothermic, and with feet “very cold to the touch.”

According the lawsuit when Mr. Hollis presented at the closest hospital his core body temperature was only 84 degrees and about one liter of blood had accumulated in his left hip from the fracture,
The Medical Examiner’s Office has opined that his eventual death was caused by hypothermia, and that the untreated hip fracture.

A 2001 report by the federal Centers for Medicare and Medicaid Services also detailed deficiencies at the center, notably understaffing.

Arbitration clauses have become increasingly common in recent years. It is quite possible that your cell phone carrier, bank, and even employer have you sign agreements that contain mandatory, binding arbitration clauses. These clauses force the consumer to give up their right to a jury trial and to have all disputes sent before an arbitrator of the company's choosing.

Increasingly arbitration clauses are being included in nursing home contracts that require patients or loved ones to agree to arbitration for any and all harms that occur while they are in the nursing home. The West Virginia Supreme Court of Appeals recently reviewed several cases that all involved nursing homes that allegedly caused the death of a nursing home resident. In each case, a representative for the resident had signed an agreement at admission that contained a clause stating that any disputes arising from negligent treatment by the nursing home would be submitted to arbitration.

The Court held that the West Virginia Legislature intended for the right to a civil action in court to be unwaivable for nursing home residents. The Court went on to say that many of the arbitration clauses at issue were "unconscionable and unenforceable" as a matter of law. The Court's holding also pointed out that arbitrations allow nursing homes to keep their negligence and violations out of the public eye. Hopefully, other courts will follow suit and hold arbitration clauses in the nursing home setting unenforceable.