Kentucky Injury Lawyer Blog

As record profits for nursing homes and their CEO salaries spiral upward, Kentucky's nursing home industry is once again in Frankfort lobbying for legislation that would limit accountability for nursing homes that abuse and neglect our loved ones.

On February 6, I arrived in Frankfort with representatives of the AARP and other groups that advocate for nursing home residents to testify in opposition to Senate Bill 9. Senate Bill 9 bill proposes to increase the size of our government by creating medical review panels for nursing home cases and, as a result, burden nursing home residents with higher costs and a biased venue. There is no question that the bill is another attempt on the part of the nursing home industry to avoid accountability for providing substandard care and endangering our loved ones.

After sitting through more than an hour of blatantly false testimony from the bill's proponents, you can imagine our shock when the bill's sponsor, Senator Julie Denton of Louisville, denied us the right to speak until after Senate Bill 9 was voted out of committee (on party lines) and most of the committee members had left the room. When the bill hit the Senate floor the following week, Denton refused to take questions from fellow Senators about the bill or about the amount of campaign contributions she had received from the nursing home industry.

Simply put, Denton made a mockery of the democratic process and should be ashamed.

Here is the truth about Kentucky nursing homes:

* Forty percent of Kentucky nursing homes are ranked below or much below average by the U.S. Center for Medicare and Medicaid Services;

* In 2012, Kentucky ranked #1 in overall federal fines at over $2 million. In fact, the most heavily fined nursing home in 2012 was in Kentucky;

* Over 3,000 deficiencies were cited in Kentucky since 2009 (nearly 2,000 of which were directly related to resident care, rights, and safety);

* Kentucky ranks #1 in average number of serious deficiencies per home - yet nursing homes get paid regardless of the quality of care;

* Poor care is expensive. For example, national data provides estimates showing preventable pressure sores have cost at least $4.8 million over the past three years and preventable resident falls have cost at least $40 million over the same time period (I emphasize at least) . . . and Kentucky taxpayers pay as much as 80% of these expenses.

Yet nursing home are VERY profitable:

* Nursing home stocks have outpaced the Dow Jones and NASDAQ markets by 2:1 and 9:1 margins respectively over the past six months while returns have ranged anywhere from 29% to as much as 245%, even in a slow economic recovery;

* Nursing home CEO salaries increased by a median 203 percent last year, pushing the average annual salary to almost $3.5 million. Key executive compensation also increased by 15% between 2008 and 2011, while front-line caregiver hours remained stagnant.

Kentucky nursing homes need more accountability, not less.

Senator Denton and her colleagues who voted for this bill need to remember their duties are to the vulnerable citizens of this Commonwealth and not the out-of-state nursing home corporation who fund their reelection campaign.

Call 1-800-372-7181 and ask your legislators to protect our loved ones living in nursing homes and assisted living facilities by saying NO to Senate Bill 9.

The number of Americans in nursing homes and assisted care facilities continues to grow, and the number of elderly Kentucky residents living in nursing homes mirrors this national trend.

There are some very fine nursing homes in Kentucky. However, unfortunately, many residents of Kentucky nursing homes are, quite simply, in jeopardy, because of poorly-managed and/or under-staffed homes run by nursing home corporations that place profit over the well-being of their elderly residents.

Fortunately, there are people who care about this problem and are willing to do something about it. The attorney authoring this post, Vanessa Cantley, is one example [reach Vanessa here]. Another is the online watch-dog, Member of the Family (www.memberofthefamily.net).

Many Kentucky nursing homes are alarmingly deficient, with many, many substantiated violations each year. To see how Medicare rates every nursing home in Kentucky, go to Member of the Family's Kentucky Nursing Home Violation Database.

Recently, members of Kentucky’s House of Representatives have proposed House Bill 361, a bill meant to force those injured and harmed by the neglect of nursing home operators out of court and in front of “review panels” to determine whether they are permitted to go to court and seek compensation for their harms. This strategy of adding additional barriers to the courthouse is one that has been successfully implemented by many states by so-called proponents of “tort reform.” Supporters claim it reduces frivolous lawsuits and protects doctors, nursing homes, hospitals, and other health care providers. It does not. I acts as a bar to the constitutional right that injured people have to seek compensation through the court system in front of a jury of their peers. Instead it takes that fundamental right to the jury process and puts it in the hands of a review panel comprised of the very kinds of people who injured you in the first place.

Bahe Cook Cantley & Nefzger PLC is opposed to HB 361. We ask that you help us fight this attempt to block access to the court and jury system by calling your legislator and telling them that you are opposed!

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.