Cindy Speaker: Good afternoon and welcome to our broadcast, my name is Cindy Speaker and we have with us today, attorney Dave Miller. Dave is with Michael J. O’Connor & Associates and he’s a personal injury attorney and he’s also going to talk with us today about a topic that I think is very timely, especially in light of another upcoming holiday and that is nursing home abuse and neglect. It effects a lot of us, I know I have an older mother now and especially on holidays we think about, “Are they getting the best care and what is going on there?” So Dave, thanks for being with us today.
Dave Miller: Hey, it’s my pleasure Cindy, thanks for having me.
Cindy Speaker: Absolutely. Well, let’s start with a little background information. What are some of the … Okay, let’s start with this, how do I select the right nursing home?
Dave Miller: Well, the selection process can be a little bit complex and there’s multiple factors to look at. I would always recommend that if the individual, if your loved one is coming from a facility such as a hospital or acute care rehab, utilize the Social Services staff at those facilities ’cause they really have their hands on the facilities where they would normally recommend an individual to go based on past experience and what’s the proper placement for your loved one. In addition to that, you really need to do your own research as well. There’s plenty of online tools to do that. Medicare has it as an excellent website called ‘Nursing Home Compare’ that gives a star rating, one through five for nursing homes.
Cindy Speaker: Oh, that’s really good. Yeah.
Dave Miller: An evaluation and give you some insight really on past experiences and past performance for that particular facility.
Cindy Speaker: Dave, let me stop you a second. What was that called? Nursing Home Compare?
Dave Miller: Yeah, it’s Nursing Home Compare is the name of the actual website but it’s through Medicare.
Cindy Speaker: Okay, I see.
Dave Miller: You can just Google Medicare, Nursing Home Compare the website will pop up and I use it all the time. You know, to research facilities, there’s a wealth of information on there when it comes to ownership, like I said, past surveys and scores on specific items that are, you know, that are meaningful.
Cindy Speaker: Yeah, that’s an excellent resource.
Dave Miller: In addition, the Pennsylvania Department of Health has their own website and on that website you can search any licensed or skilled nursing facility in Pennsylvania, pull up their ratings as well as their surveys, which is basically there’s an annual survey and there’s also complaint surveys. All of those are on the Department of Health’s Nursing Home website. Those are excellent sources of information to find out how that particular facility is performing.
Cindy Speaker: Yeah. That’s great. Yeah.
Dave Miller: Not only close to the time where you’re looking but also historically and see how they’ve done in the past. Those are two excellent online resources. And word of mouth, word of mouth is always, ask around. There’s not a huge number of nursing homes out there. Most people want to have their loved one in a facility that’s close by, within reasonable driving distance so, you know, ask around the area, ask friends and relatives if they have any experiences they can share. Because that’s really what it comes down to is you want to get your loved one in the right spot for them.
Cindy Speaker: Absolutely. Yeah. Now, what are some of the rules that nursing homes have to follow that are protective of the residents?
Dave Miller: Well, the main set of regulations are Federal. They’ve been in existence for over 30 years now and it’s a very complex set of regulations that go along with that statute and it’s very beneficial, I think, to protect and preserve the rights of the nursing home residents. They’re there and they’re guidelines and from my perspective, we try to hold the nursing homes to them. There’s always some argument when we get into litigation, whether or not they’re just guidelines or if they actually need to meet those. They talk about them as being reimbursement guidelines so it gets a little bit complex on the legal side but the reality is that they’re there and they’re there to protect the residents. It’s a lot of basic stuff, it’s, you know, some of the regulations are, “Do the best you can to preserve the condition of the individual when they come into the facility.” That’s a pretty easy rule to follow.
From a general standpoint. Obviously the details make things a little more complex but there’s a whole list and litany that you can kind of get swamped in but a lot of them are very common sense. It’s feed the person appropriately, give them enough hydration, if they’re susceptible to pressure ulcers, turn them frequently, have them on the right type of mattress. It’s all things that you would, if you asked 10 people walking down the street, “Is this unreasonable if we expected x, y and z from a skilled nursing facility that’s licensed in Pennsylvania to do these things?” They’d say, “No, of course, that’s what we’d expect them to do.” So, those regulations aren’t, from what my perspective, not burdensome. I’m sure from ownerships standpoint, they feel that some of them are but the reality is they’re in place to protect the resident.
There’s a licensing set of statutes in Pennsylvania that mirror, for the most part, the Federal Regulations and they incorporate the Federal Regulations and that’s really so they can maintain their license and that’s where the Department of Health comes in. And they’ll do the surveys … Go ahead.
Cindy Speaker: Yeah, no. I was gonna say, even though, as you said, a lot of it seems like common sense, I’m sure you, as I, have been in nursing homes where you really are not seeing those basic levels of care. So I think, and a lot of times it’s kind of what would you say, a sin of a mission in that nobody’s paying attention. Are they being hydrated or I mean, something as simple as being hydrated. Is their water being refreshed a couple times a day? I don’t think that happens in some of the nursing homes I’ve been in. So, even though they are entitled to that basic level of care, I can understand why it almost has to be written down and it has to be mandated because all too often I think it just isn’t happening.
Dave Miller: And I think that was the impetus for why those regulations were originally put in place. And that’s unfortunate that it got to that level.
Cindy Speaker: It is.
Dave Miller: I think things had improved for a while but you know, anyone you talk to now, I think we’re back at where we were before and that’s why there’s some talk about revising some of those regulations.
Cindy Speaker: Okay. So, that was gonna’ be my next question because you said they’re 30 years old. Are there any changes on the horizon?
Dave Miller: There are. So, right now, CMS, which is the Medicare, the acronym for Medicare, they are in rule making mode right now. And they’re looking at all of these regulations and making some changes. Well, unfortunately with the good comes the bad so while there are some changes that are beneficial to the resident, there’s also, I guess it’s a give and take whenever we’re talking about politics and it’s a political nature of regulations is we have to strike a balance. So two of I think the most negative aspects of what’s on the horizon are. One is … Proposed rule was out there for a while about banning pre-incident arbitration agreements where you could not make signing an arbitration agreement a requirement for being a resident in the facility and that was gonna be a huge victory, I think, for the residents because we’re seeing a lot, any for profits, especially, nursing home chains are requiring … “Requiring”, they kind of slip in the arbitration agreement with the admission paperwork. An arbitration agreement that takes away the seventh amendment right of the residents and their families for bringing a law suit to something that is wrong. That’s a huge deal.
Cindy Speaker: It sure is.
Dave Miller: Now when push came to shove, unfortunately CMS retracted that rule so now we’re back to square one where it still falls under state law, it still falls under the analysis of whether or not a valid contract was formed so it’s get into a very legal analysis, which the reality is when you’re admitting a loved one or even yourself into a skilled nursing facility, you shouldn’t have to think about the legalities of what does it mean what I’m signing right now when it comes to giving up my constitutional rights. That shouldn’t be partial to trying to get the best care you can. That’s where we come from. I have no problem, there’s certain cases where it makes sense to the arbitration. But that agreement should be struck after something happens. It shouldn’t be forced upon you from the get go. So, that’s the give and take on that but it looks like we’ve lost that battle at this point.
Cindy Speaker: Okay. Let me just ask you to explain that. So, let’s say your loved one is in a nursing home and it’s your mother and maybe she has bed sores. Just clearly, adequate care is not being provided. In the course of that when you say arbitration, is that mean that basically my family or whoever’s family’s involved and the arbitrator whoever is involved there have to sit down and discuss this. Explain a little bit about that. So who are the people that are in that meeting? How are they … I don’t even know if it’s called … Is it an arbitrator or how are those people chosen who are going to sit down with my family and decide what happens?
Dave Miller: Yeah, it’s varied. Depends on what kind of contract you have. So, some of these agreements, they call them “agreements.” I don’t think they’re agreements, I think they’re clauses or whatever you want to call them. They will pick the arbitration forum. So, it’ll be a group. There’s multiple of them out there. And interestingly, a lot of them have said, “We’re not doing these any more because we don’t think it’s fair.”
Cindy Speaker: Oh interesting.
Dave Miller: Yeah, it’s still out there. And they’ll have their own set of rules. So, you’re basically … The rules generally say, “You have to try to pick an arbitrator that you would both agree upon and if that doesn’t happen you submit it to the court of the jurisdiction where the facility sits and then that judge will pick the arbitrator out and select the potential selection.” And then you’re subject to that particular forums rules and those are, most times … Well, 100 percent of the time it’s multiple times more expensive than filing a civil law suit and we’re talking …
Cindy Speaker: Well, that’s what I was wondering. Who pays for it?
Dave Miller: Well, this is an evolving thing. So in the past, i would say the last five years, it’s changed where it used to be a split cost. And because of the fact that arbitration is so expensive compared to the civil path through the courts … And we’re talking like 20, 30 thousand dollars depending on the amount of motions you file and discovery motions and depositions can take … Now, a lot of these new arbitration agreements we’re seeing is that the facility will pay for the cost of the arbitration and that’s because a lot of these arbitration agreements were defeated on that very fact that how can you expect an individual to come up with 30 thousand dollars to get through arbitration? Well, they can do that in the civil justice system for 500 dollars. It’s just not fair and that’s sort of one of the pieces and arguments for why they do that. You want me to flash a price tag in front of somebody. There’s no way that they can come up with that kind of money.
Then there’s other rules about limiting discovery. You can only ask 10 interrogatories and take two depositions. Things like that are just agreed just at eliminating punitive damages. So there’s a lot of over-stepping in these agreements that have been struck down. Now they’ve become a little bit more fair because we’ve challenged them time and time again and have been successful in the courts in striking them down. But the reality is, arbitration is stacked in the facility’s favor. There’s a reason why they pick forums, is because if they send … Think about that. Most families do this once. But these facilities do it hundreds and hundreds of times over a year. So they’re sending all their business to the same forum, they’re expecting a certain percentage of a result and a certain limitation of a result. Otherwise it’ll switch to forum and just change their arbitration agreement.
While that’s not really laid out in their agreement of course, it’s understood as part of the process and that goes to … It’s a legal word called uncautionability. And that’s, we can sort of use this statistics to show a judge when we challenge these agreements that, “Hey, this just isn’t fair from the get go. My client should not be subject to this forum. Because first off, they’re going to have to potentially spend 10 thousand dollars to get even into the forum and then they’re subject to spy us. That’s inherent in their system.” That’s an unfortunate part. We thought we had that in a good spot, but it’s looking like that’s gonna be the battle for next time down the road.
Another change, unfortunately, and I hadn’t get an update but today the US House is voting on a bill to put federal tort reform in place that would limit non-economic damages in these kind of cases federally.
Cindy Speaker: Okay. Federally?
Dave Miller: Federal tort reform. So there’s all kinds of issues floating around with this. You’re talking about state right’s issues. You’re talking about just general fairness issues. Now, in Pennsylvania, we don’t have tort reform caps right now. We have versions of tort reform but we don’t have caps. This particular bill is looking to place 250 thousand dollar gap on non-economic damages and the law as proposed will defer to a state cap that’s in place. But we don’t have them. So now, we’re gonna be stuck with this 250 thousand dollar cap. Where our state constitution says we’re not having that. But here, we have the federal government stepping in in Washington DC and saying, “Now this is what it’s going to be across the country.” It’s a big debate.
Cindy Speaker: Yeah it is. Dave, explain non-economic damages.
Dave Miller: So these are … Non-economic damages are, I like to call them human damages. Because these are the damages that effect the person beyond economics, beyond wage loss, beyond medical bills, beyond out-of-pocket expenses to maybe remodel a house, get their rent and things like that. These are pain and suffering, loss of life’s enjoyment, loss of dignity … The fact that this person had to go through this experience. It’s those kind of damages that are sort of difficult to put a dollar value on but I feel it’s unfair for a group of people to say, “No matter what happened in this circumstance, and it doesn’t matter what that particular person’s set of circumstances are, 250. That’s all you get. Doesn’t matter how many defendants there are, doesn’t matter what happened.” So if you come to court, that’s all you can expect. And it doesn’t matter if the jury awards three million dollars or whatever they award, the judge will reduce that to 250 thousand dollars. So they’re basically stripping the role of the jury. Jury of your peers to make a determination, and I don’t think that’s fair.
Cindy Speaker: Now what are some of the signs of nursing home abuse or neglect that you … And you deal with some of these.
Dave Miller: Yeah. So there’s some very obvious ones. A lot of falls in a row, unexplained bruising, scratches, injuries like that. There’s the obvious ones that you would see. Any kind of sudden change in the health of the individual. UTIs, dehydration is a huge thing. And dehydration just leads to so many things especially with individuals who have diagnosis of dementia. Dehydration will set that off and UTIs are a huge problem as well. Pressure sores, obviously. These are all the kind of big red flags that show up.
But I would say … The biggest recommendation I can make to any one is … And this goes back to selecting a facility that’s close by or at least within distance where you can get there at any point and time in the day because the reality is … I think under-staffing is probably the biggest concern with facilities. And if the family or loved ones are not involved in showing up and double checking and making sure things are done the right way and taking notice of these changes because it can be a matter of days where an individual is okay on Monday and by Friday they can be sent to the hospital emergently for dehydration that kicked off some things. So it’s just a matter of being involved and staying on top of them because you’re gonna be sold on the facility. That’s part of the marketing of this deal.
I don’t want to come down and say, “Every nursing home out there’s bad.” Because that’s not right. There’s plenty of facilities that are doing an outstanding job and the ratings that I talked about before show that. But the best … Well, I would say the majority of these facilities are not meeting the expectations. And it unfortunately falls on the family and friends to double check the staff to make sure they’re doing the right thing.
Cindy Speaker: Yeah, now what if someone, if a family member suspects abuse or neglect? What steps should they take at that point?
Dave Miller: I would say the first thing that should be done is talk to administration at the facility, unless it’s a completely egregious situation. If it’s a physical violence situation, sexual violence, that crazy terrible stuff happens in these facilities. Unless it’s one of those kind of scenarios, I would say take that step. Talk to the Director Nurse and talk to the administrative facility and say, “Here’s my concerns. We’ve tries to deal with this with the nursing staff. They’re not doing what we want them to do. Can you take some steps?” That would be step one.
Now, there’s always care plan meetings, usually monthly. That’s at a time where the family can sort of relay those issues as well and make sure that they’re known to be addressed. And if a time goes by and they’re not being addressed, I would say you can get in touch with the ombudsman through the area agency on aging for the county. That’s next step. Beyond that, you have the Department of Health. You can form … File a form or complaint with Department of Health. You can do that anonymously or you can do it online. Put all your information in there and they’re obligated to go and investigate all those complaints. And last step, I would say call an attorney because an attorney can direct the individual to help through those processes. Maybe get in touch with the facility and kind of cut some of these things off before they get to the point where you really need to take further action.
It’s all about being proactive. It’s an unfortunate situation that we’re in that you really have to be on top of things that way. You expect that when you place an individual into a facility that’s licensed to do this care, they will actually do the care that they said they would. Reality is it doesn’t always happen and a lot of that time it’s a profit motive or just they can’t find the staff to fully and properly staff. There’s a lot of reasons for it but I think the ultimate way to cut things off is to be involved and to show up and be the pain. Be the one that, “All right, we better take care of this individual because if we don’t we know we’re gonna hear about it.” That’s how you make sure that individual is going to be taken care of.
Cindy Speaker: Yeah. I agree. But let’s talk a little bit about when … In the cases that you do get involved in, can you tell us a little more about that and what your role is? How you can help.
Dave Miller: Yeah. So what I do and normally is that I try to reach out to either the Administrator or if it’s a corporate ownership situation, I’ve been doing this enough times where I have some relationships where I can get the phone or send a letter to that person that’s sort of an in-house person. To say, “Hey, there’s some things that’s going on here with this individual. You might want to check in because if you don’t and things continue this way it’s not going to be a good outcome.” And I will certainly at any point in time … If someone calls me with an issue and they need something done by way of just a phone call or a letter, we’ll certainly do that. Because we much rather take that step early on to alleviate a disaster than wait for that disaster to happen and then have to deal with that on the back end so.
And unfortunately if you wait too long, sometimes, you know, individuals are in nursing facilities for a reason. They’re unhealthy and it doesn’t take much to tip that scale to the wrong side of things. So we have to be very vigilant to make sure those things don’t happen.
Cindy Speaker: Well, Dave, if someone does have questions, wants to talk to you, what’s the best way to reach out to you?
Dave Miller: The best way is online at our … www.OConnorLaw.com or reach out on the phone at 800-518-4Law.
Cindy Speaker: Okay. Anything you want to add?
Dave Miller: No, I think that’s it. But I would say any questions feel free. Anyone out there, just email or get in touch with our office. That was a pretty in-depth conversation we just had with a lot of different tangents. So I’m here to help.
Cindy Speaker: Awesome.
Dave Miller: So reach out to us.
Cindy Speaker: Thanks so much, Dave.
Dave Miller: You bet, Cindy. Thanks for having me.