Our client, Marietta Frazier, is the widow of former Pioneer nursing home resident, Henry Frazier.  Mrs. Frazier claimed that her husband, who had advanced Parkinson’s Disease and who was 88 years old, developed a serious pressure sore on his bottom while at Pioneer as a result of nursing home neglect.  Mrs. Frazier contended that neither she nor her family members were told how serious the pressure sore was by Pioneer nursing home staff and that no steps were taken to keep Mr. Frazier off of the pressure sore once it developed.  As a result, the pressure sore became an infected, foul-smelling, Stage IV wound.  Mrs. Frazier contended that even after Mr. Frazier became very sick and nearly unresponsive, Pioneer nursing home staff failed to send him to the hospital and instead gave the family the treating physician’s telephone number when they asked that he be sent out. The treating physician did not return their phone call, and the family again asked for Mr. Frazier to be sent out to the hospital the following day in order to get him transferred.  Upon arrival to the hospital, Mr. Frazier was assessed as being septic, dehydrated and malnourished.  His pressure sore was seriously infected with MRSA, a particularly dangerous type of bacteria.  Hospital staff were concerned that this patient had been the victim of nursing home abuse and neglect.

Mr. Frazier never recovered from this serious pressure sore and MRSA infection, and died two months later, on December 3, 2010.  His death certificate listed MRSA as his primary cause of death.

This wrongful death case was tried to the jury April 23 through April 27, 2012.  The jury deliberated for just under three hours before returning its verdict in our client’s favor.

Read what the media has reported on this verdict:

$3.2 million award in Rocky Ford nursing home death tied to bedsores (The Denver Post)

Poor care at Rocky Ford nursing home blamed for death (The Pueblo Chieftain)

$3.2 million verdict – Jury awards money to family of former nursing home resident (La Junta Tribune Democrat)

The issues on appeal sought to be reviewed by the Supreme Court include whether a family in Colorado has the right to bring a lawsuit under the “loss of chance” doctrine.  The “loss of chance” doctrine involves the right of a plaintiff to sue for an increased risk of harm or the loss of a chance of medical treatment caused by a medical provider’s negligence.  The doctrine has been recognized in 22 states.

The Reigels also sought review of the Court of Appeal’s finding that the nursing home did not engage in extreme and outrageous conduct with regard to Mrs. Reigel, who repeatedly asked to have her husband transferred from the nursing home to a hospital while he was having a heart attack, and was refused.  The Court of Appeals held, among other things, that since the nursing home staff did not actually know Mr. Reigel was having a heart attack, their conduct was not outrageous, even though their conduct was probably reckless.

The Colorado Supreme Court must now decide whether to take the Reigel’s case on appeal.

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’.

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.

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.

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.

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.

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.

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

http://www.chieftain.com/news/local/cmhip-treatment-of-patient-under-review/article_450562d8-c249-11e0-96e0-001cc4c03286.html

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 (3^rd 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.