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Colorado Attorneys specializing in Nursing Home Neglect & Abuse, Medical Malpractice, Consumer Protection and Civil Rights
Call Us Now at (303) 894-0383.
Colorado Attorneys specializing in Nursing Home Neglect & Abuse, Medical Malpractice, Consumer Protection and Civil Rights
Last week, the Law Offices of J.M. Reinan, P.C. filed suit against the Adolescent and Family Institute of Colorado (“AFIC”), its owner, Alex Panio, and its Medical Director, Dr. Edra Weiss, on behalf of Aimee and Christopher Donabedian.
Our clients claim that AFIC and Alex Panio admitted Christopher Donabedian, then 16 years old, to AFIC’s inpatient facility, promising intensive psychiatric treatment. Alex Panio didn’t tell the Donabedians that he was not a licensed psychologist or that his usual treatment plan included taking children off of their psychiatric medications. The Donabedians at the time were under the false belief that Panio was a doctor because he and AFIC refer to him as such both on their internet website and in person. The Donabedians further allege that Panio posed as a physician when discussing Christopher’s care and treatment with the Donabedian’s insurance company by doing such things as making diagnoses and telling the insurance company how he was going to change Christopher’s medication orders. He referred to himself as a physician to the insurance company as well.
The Donabedians claim that Christopher was deprived of his necessary anti-depressant and anti-psychotic medications, which had been prescribed for him just before his admission to AFIC. They further claim that Panio went so far as to diagnose Christopher as a “sociopath,” which is no longer a recognized psychiatric diagnosis and which in no case can be applied to someone under the age of 18. They also claim that AFIC staff told them that Christopher was “like Ted Bundy” and that staff forced Christopher to dream up and write down homicidal plans, which he did not otherwise have.
When the Donabedians attempted to remove Christopher from the mental health facility, they were thrown off of the AFIC property and ultimately had to call the police in order to secure Christopher’s discharge.
The Donabedians have brought legal claims of deceptive trade practices; negligence; fraud; unlawful practice of medicine; breach of fiduciary duty; and civil conspiracy.
The Denver Post ran a story on the Donabedians’ case, which can be found via the following link: http://www.denverpost.com/search/ci_19895889
As a result of this article, several other families have come forward with stories AFIC and Panio’s abuse and deception very similar to our clients’.
As Colorado nursing home abuse and neglect attorneys, we are often asked for advice on what nursing home would be best for mom or dad in Denver, the Front Range, and beyond. Unfortunately, because the quality of care at nursing homes can change so rapidly, we are often unable to provide direct advice on the best Colorado or Denver facilities. However, there are some tools available on the Internet that can provide a good picture of where not to place your loved one.
The Colorado health department’s website maintains a full list of health care surveys of all Colorado nursing homes. If you follow the link below and type in the name of the nursing home or assisted living facility you are considering, you will pull up the health department deficiency page associated with that nursing home or assisted living facility: http://www.cdphe.state.co.us/hf/index.html
Interpreting the results of the surveys is fairly straightforward, we believe. Colorado nursing homes and assisted living facilities are required to be surveyed or inspected by the health department routinely, usually every year or so. In addition, the Colorado health department investigates complaints of abuse, neglect and other concerns made by residents, family members or other advocates.
If the health department finds that a nursing home or assisted living facility has violated State or Federal nursing home regulations or other Colorado or Federal laws, the facility will be cited with one or more deficiencies.
These deficiencies will be listed on the Internet webpage for each individual facility. For Denver and surrounding area nursing homes, deficiencies are ranked on a scale from A to L. For example, an A level deficiency is a minor infraction involving only one resident. An L level deficiency is the worst. It entails immediate jeopardy to the health or safety of most or all of the nursing home residents. For assisted living facilities, the rankings are from A through C, with C being the most severe.
When reviewing deficiencies against a prospective Colorado nursing home, you should be looking at the number of deficiencies as well as the severity of those deficiencies. Deficiencies of level G or greater indicate that the health department has found that the nursing home’s care has caused actual harm to one or more residents. That makes G through L deficiencies something to watch out for.
There is one caveat. Colorado law allows facilities to appeal deficiencies through what is called Informal Dispute Resolution, or IDR. Some people believe that IDR often works in the favor of nursing homes because it gives the nursing home the opportunity to essentially negotiate a serious G or greater deficiency to something less serious. IDR proceedings are not listed on the Internet, so it is impossible to determine whether a D level deficiency, for example, had been originally cited as a serious G level deficiency.
That aside, you can expect that nursing homes in Denver and Colorado with few and relatively minor deficiencies over a period of years might be a better facility than one that is regularly cited with a large number of deficiencies or deficiencies at level G or greater. Just like anything else, past performance does not guarantee that the nursing home will provide good care in the future, but at least it gives you a picture of what has gone on previously.
Another useful tool for researching Colorado nursing homes and assisted living facilities is the Federal Medicare.gov Nursing Home Compare website. Here is a link to that site: http://www.medicare.gov/NHCompare/. Medicare Nursing Home Compare allows you to research not only Colorado State health department deficiencies, but also staffing and quality of care for nursing homes in a given geographic region. You can use this tool to find all nursing facilities in your zip code or within a set number of miles from your or your loved one’s home. Medicare ranks nursing homes from 1 to five stars, with 5 stars being the best. This is a quick and easy way to get a general overview of how each nursing home compares. It also allows you to compare two or more nursing homes at once. It is perhaps a quicker and easier tool to use than the Colorado health department’s website, but it does not provide nearly as much detail regarding specific complaint investigations or survey results.
We recommend that you take the time to use both of these tools. We also recommend that you personally visit any nursing home or assisted living facility you are considering. You should be able to meet with an admissions person at the facility who can answer your specific questions and give you a tour of the facility. Use your eyes, ears and nose to get a sense of each facility you tour. Remember, sometimes the best care is not provided in the newest, fanciest buildings. Also remember that if it doesn’t smell good, it might not be good.
If in doubt, give us a call and we can help point you in the right direction.
It is becoming more and more common for Colorado health care facilities, including nursing homes, hospitals and mental health care providers, to deny patients or their family members access to medical records. These providers often tell the patient or their family members that disclosure of the records is not allowed under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
HIPAA is a rather lengthy and somewhat complicated set of laws nominally designed to protect private medical records. Because of its complexity, many people and institutions simply do not understand HIPAA, and often misapply it.
In reality, HIPAA does not allow, in most instances, a healthcare provider to withhold your medical records from you. HIPAA also does not allow a medical health provider to withhold the medical records of a deceased patient from his or her “next of kin.” Under Colorado law, next of kin is defined as the deceased person’s heirs at law, which would include the parents and children of the decedent. Thus, if your mother dies in a nursing home, you, as both next of kin and heir at law, are entitled to request copies of your mother’s medical records. This is true even if you are not the power of attorney or the personal representative of your mother’s estate.
We have found that hospitals, in particular, seem to believe that HIPAA requires that an estate be opened and a personal representative be appointed in order for a deceased person’s medical records to be released. That is simply not true.
If you are having problems obtaining medical records from a Colorado nursing home, hospital or other health care facility, please don’t hesitate to call us for a free consultation.
Many Colorado nursing home companies are now having residents or their family members sign arbitration agreements as part of the admissions process. Arbitration is often portrayed as a more fair, efficient and cost effective alternative to litigation and a jury trial. While arbitration is theoretically an interesting alternative to a jury trial, it is often unfair to the consumer who unwittingly agrees to it.
For one thing, arbitrations generally do not allow full discovery, including depositions and the exchange of important documents. This makes is very hard for the nursing home resident’s attorney to fully develop the case for arbitration, since most of the important documents and information are in the exclusive control of the nursing home company.
The second problem with arbitration is that it is a strictly private proceeding. Part of the reason many people choose to sue a nursing home is to prevent it from hurting others in the future. However, since arbitrations and arbitration awards are generally not public, there is little or no public exposure of the wrongs caused by the nursing home.
Third, arbitrations can limit access to damages, including punitive damages (damages intended to punish and deter bad conduct) and potentially attorney fees.
Finally, some arbitrations can be biased in favor of the nursing home company.
For example, Life Care Centers of America has a standard contract that designates the National Arbitration Forum (“NAF”) as the arbitrator. NAF was the subject of an investigation by the U.S. House of Representatives for fraud, corruption and deceptive business practices in 2009. NAF was also sued by the Attorney General of the State of Minnesota for these same types of things.
Among other things, NAF has been accused of pressuring its arbitrators to find in favor of NAF’s corporate clients and against the consumers involved in the arbitrations. NAF has also been accused of doing such things as firing arbitrators who find in favor of consumers; reversing awards and decisions favoring consumers; and assisting arbitrators in reaching decisions unfavorable to consumers.
In Colorado, nursing home residents are not required to sign an arbitration agreement as a condition of admission. Some nursing homes might suggest as much or might try to aggressively promote arbitration as good or necessary. Our suggestion is to confer with an attorney before signing an arbitration agreement. If you do sign one, you have 90 days to rescind the agreement.
Our client’s wife, a 48-year old woman, was a resident at a Life Care Centers of America facility, Hallmark Nursing Center. Upon admission, a Hallmark representative had her sign a Medical Durable Power of Attorney naming her husband as her agent to make medical decisions in the event of her mental incapacity. After she signed the power of attorney, Hallmark then had her husband sign the rest of her admission documents, including an arbitration agreement. At the time the documents were signed, his wife was not incapacitated and was fully alert, oriented and able to sign her own papers.
Several days later the wife developed a serious infection. Our client claims that Hallmark did not monitor her carefully and did not send her to the hospital soon enough. The wife died suddenly and unexpectedly from the infection. Our client filed suit against Life Care Centers of America as Hallmark’s owner.
Life Care has now demanded that the case be sent to arbitration. The exclusive arbitrator listed in the agreement is NAF.
While we do not know whether Life Care Centers of America had knowledge of NAF’s corrupt practices or whether Life Care Centers of America had some relationship or agreement with NAF similar to those described above, it is certainly troubling that Life Care Centers continued to designate NAF as its exclusive arbitration service more than a year after these serious allegations and findings of corruption were widely published in the media.
We have filed a response to the arbitration demand claiming, among other things, that the arbitration agreement is invalid because the power of attorney was not effective at the time the husband signed it, and the arbitration agreement is unenforceable because it designates NAF, which has been alleged to be a biased and corrupt organization, as the arbitrator. The agreement our client signed promised a fair and just proceeding. Had he known the allegations against NAF, he would not have signed it.
This issue is now before the Denver District Court.
On Tuesday, November 8, 2011, a division of the Colorado Court of Appeals heard arguments from counsel on SavaSeniorCare’s appeal of the verdict entered against it in Reigel v. SavaSeniorCare et al. An Adams County jury entered a verdict against SavaSeniorCare’s Thornton nursing and rehabilitation facility, Alpine Living Center, in the amount of $450,000.00 stemming from the death of Dennis Reigel, a former resident of Alpine, as well as for the extreme and outrageous conduct that facility displayed toward his wife.
The primary issue argued on appeal was whether the trial court erred in instructing the jury on what is known as the Loss of a Chance Doctrine. SavaSeniorCare argued, in essence, that there should be no way for a patient’s family to prevail against the nursing home if the nursing home resident simply lost a chance for treatment due to the nursing home’s failure or refusal to timely transfer the resident to a hospital. In the Reigel case, Dennis Reigel, 66, suffered a heart attack at Alpine. His wife repeatedly asked for medical attention and requested that her husband be transferred to a hospital, but was told that Dennis was fine and was made to feel that she was overreacting. When Dennis was finally transferred to the hospital, he was in critical condition and the window of time for performing a life-saving angioplasty had lapsed. The hospital records reflect that his heart attack had occurred some 24-48 hours earlier.
The jury was given both the Loss of a Chance instruction and the stock jury instruction for medical causation (i.e., the facility’s negligence must have been a cause of the wrongful death). The Law Offices of J.M. Reinan argued that the Loss of a Chance Doctrine is the law in Colorado and even if that instruction is determined to have been given in error, such error was harmless because the jury also received the stock causation instruction.
The Court of Appeals is expected to rule on this and the other issues before it within the next few months.
The Law Offices of JM Reinan, PC recently tried a case on behalf of Virginia Wolfskill against her former rehabilitation facility, Alpine Living Center, which is located in Thornton. Alpine Living Center is owned and operated by SavaSeniorCare, a national nursing home chain with multiple facilities in Colorado.
Virginia Wolfskill, who was in her late 50s at the time, was admitted to Alpine Living Center for short-term rehabilitation and strengthening following a total knee replacement surgery. Ms. Wolfskill claimed that shortly after her admission to Alpine she developed a wound next to her surgical incision. She claimed that Alpine’s nursing staff failed to assess, measure and treat her wound. Then, on or about November 6, 2007, Ms. Wolfskill’s roommate fell on her newly replaced knee, further aggravating the wound. Even after this significant incident, Alpine staff still failed to assess, measure and treat her wound. Ms. Wolfskill claimed that due to the negligent care of this wound, the wound tunneled down to her prosthetic knee, causing an infection that later resulted in the removal of her prosthetic knee and the fusion of her leg bone.
In addition to allegations of Alpine’s negligent care of her wound, Ms. Wolfskill also put on evidence concerning Alpine’s loss or destruction of some of her medical records directly related to the roommate’s fall incident and her wound care.
The Adams County jury found in Ms. Wolfskill’s favor, awarding her $135,000.00 in damages. With interest and costs, her verdict totals just over $200,000.00.
Our firm has begun working on another case against the Colorado Mental Health Institute at Pueblo (CMHIP).
Shawn Whittaker recently suffered a spiral fracture to his right arm, severe bruising all over his body and an injured foot while at CMHIP.
Shawn, 39, was hit by a drunk driver when he was 18 years old and left with a permanent closed head injury. One of the side effects of his head injury is recurrent bouts of depression.
In mid-July, 2011, Shawn was feeling depressed and was taken to the hospital by his family for treatment. He was transferred from the hospital to CMHIP, where he was admitted on a voluntary basis.
Just a few days after having been admitted to CMHIP, Shawn was in the cafeteria where he requested a soda. Because of certain restrictions, Shawn was denied the soft drink. Allegedly, Shawn became extremely upset, and a CMHIP employee hailed four security guards. According to a fellow patient and eye witness, the security guards cleared all of the patients out of the room except for Shawn. While this eye witness was walking away, he heard a table hit the ground and heard Shawn scream out in pain. Shawn reports they twisted his arm with such force he felt it snap. In addition to the snapped humerus bone, Shawn also suffered bruising on both arms, his back, chest and his ear. He also suffered ligament damage to his foot.
After the incident, it is alleged that the four CMHIP officers restrained Shawn by tying him to a bed for two hours because he was screaming out in pain. Despite his repeated requests for emergency medical attention, Shawn was not taken to the hospital for treatment until 18 hours later. Shawn later underwent surgery for his arm fracture.
The family has made repeated requests for information concerning this incident and the video surveillance pursuant to the Colorado Open Records Act (CORA). So far, those requests have been denied by CMHIP, the Pueblo Sheriff’s office and the Colorado Department of Human Services.
To read more about this story, go to the following links:
http://www.krdo.com/news/29212700/detail.html
http://www.thedenverchannel.com/news/28990619/detail.html
The Law Offices of J.M. Reinan, P.C. is appealing to the U.S. Court of Appeals for the Tenth Circuit the dismissal of a lawsuit brought on behalf of a former Bent County Healthcare Center resident, Alice Hawkins.
The lawsuit was brought against Bent County and the Administrator of the Bent County Healthcare Center, and alleged violations of the Federal Nursing Home Reform Act of 1987 (FNHRA).
Alice Hawkins was admitted to Bent County Healthcare Center with a pressure sore she had developed while at Parkview Hospital. The suit alleged that Bent County Healthcare Center improperly admitted Ms. Hawkins and then, once admitted, violated several federal statutory requirements concerning Ms. Hawkins’s care, including requirements governing pressure sore treatment, proper nutrition and hydration, communications with physicians and family members, and facility administration. Ms. Hawkins alleged that as a result of these statutory violations, she was discharged from Bent County Healthcare Center with a serious and life-threatening pressure sore that required surgery and removal of a portion of her tailbone.
Ms. Hawkins claimed that Bent County Healthcare Center violated her federal statutory rights by “failing to satisfy the standards of quality of care and resident rights set forth in 42 U.S.C. §§ 1395i-3 and 1396r.” The suit was brought under the theory that these and other violations of the specific provisions of the FNHRA provided Ms. Hawkins with a private right of action to pursue a civil rights case under 42 U.S.C. § 1983.
Bent County and its Administrator moved to dismiss the case arguing that the FNHRA does not create an enforceable private right of action under 42 U.S.C. § 1983.
The court granted the motion to dismiss stating that, “even when a statute speaks in terms of rights, there is no presumption of enforceability.” The Court further found that “FNHRA provisions focus on what state nursing facilities must do to maintain funding, not on the benefits received by the residents.”
In its ruling, the District Court expressed disagreement with the Third Circuit Court’s decision in Grammar v. John J. Kane Regional Centers-Glenn Hazel, 570 F.3d 520 (3rd Cir. 2009). In Grammar, the Third Circuit held that the FNHRA does create an enforceable private right of action under § 1983.
This issue had not yet been addressed in the District of Colorado, and has not yet been addressed by the Tenth Circuit. Courts in other jurisdictions have held that the FNHRA does create an enforceable private right of action under § 1983.
The Federal Rights Project at the National Senior Citizens Law Center will be filing an amicus brief in support of the Reinan Law Office’s appeal.
The Law Offices of J.M. Reinan, P.C. represents Betty Miller, whose sister, Shirley Wolf, died from hypothermia after being locked out of her Lakewood, Colorado assisted living facility, Eaton Terrace II, for several hours in November, 2009.
The lawsuit, recently filed in Jefferson County on Ms. Miller’s behalf, contains allegations that Eaton Terrace II failed to properly monitor Ms. Wolf in order to ensure her safety; failed to sufficiently staff its facility to ensure Ms. Wolf’s safety; failed to keep Ms. Miller informed about her sister’s prior escapes and attempted escapes from the facility; and failed to implement safety precautions and oversight mechanisms to prevent Ms. Wolf from escaping and, once she had escaped, from realizing she was missing.
It is further alleged that Eaton Terrace II’s conduct following Ms. Wolf’s death was unlawful. In particular, it is claimed that Eaton Terrace II gave conflicting accounts of what happened to investigating agencies, including the local police department and the health department, and falsified Ms. Wolf’s chart.
Ms. Miller has brought claims for violation of the Colorado Consumer Protection Act, Extreme and Outrageous Conduct, Breach of Fiduciary Duty and Fraud.
The Law Offices of J.M. Reinan, P.C. was approached by Colorado Bar Association CLE to author a chapter in the latest edition of Elder Law in Colorado, a publication issued by CBA/CLE Books. We have been informed that the issue has just been completed and released!
Attorneys J Reinan and Jordana Gingrass wrote the chapter entitled “Nursing Home Litigation,” which we hope will serve as a guide to attorneys and others interested in Colorado nursing home lawsuits. Among other things, the chapter details types of injuries commonly seen in nursing homes; legal claims that may stem from those nursing home injuries; and discovery and evidentiary issues that often arise in these types of cases.
We look forward to receiving feedback on our chapter and hope it is found to be a helpful resource!
For more information about CBA/CLE and/or the fourth edition of Elder Law in Colorado, go to www.cobar.org/cle or call them directly at (303) 860-0608.