DO YOU SUSPECT ABUSE OR NEGLECT? Contact Us for a Free Consultation

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It took jurors only five hours to convict 21-year-old Cesar Ulloa of criminal elder abuse for his brutal treatment of residents at the Calabasas nursing home where he worked. According to prosecutors, Ulloa would laugh as he attacked his victims, many of whom were to demented to be able to call for help. He faces life in prison.

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In one of the assaults, a fellow employee witnessed Ulloa jump on the chest of a non-verbal 78-year-old woman’s chest, and throwing her on the bed as she struggled. To another elderly male resident, Ulloa jumped off a dresser and landed with both knees on the man’s abdomen, seriously injuring the man. He apparently would laugh with delight while brutalizing the patients.

Suspicion over Ulloa actions was raised after the wife of a resident received an anonymous phone call the day after her husband’s funeral. The call said that her husband had been abused, and that his death may have been related to the abuse, something the family suspected. The police were notified, and the victim’s body exhumed for an autopsy that revealed more than 24 fractures. The man’s death was determined to be caused by blunt force trauma.

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Heritage Rehabilitation Center in Long Beach has been sued for a sexual assault that occurred there just last month. According to the lawsuit, filed by James Morgan, the victim “Jane Doe” was suffered elder abuse and neglect when a man entered her room through an unlocked window and assaulted her. The suit also claims there may be other victims.

The suit alleges that the nursing facility was chronically understaffed. According to Morgan, “This was an active time of the day and there was nobody anywhere, which supports our theory they didn’t have enough staff in there to look after residents or see people coming in from the outside.”

Heritage Rehabilitation Center is a 161 bed facility that has been in operation for more than 35 years. It currently maintains a three star (out of five) on Medicare’s “Nursing Home Compare” website.

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The healthcare reform bill signed by President Obama this week will have an impact on nursing homes and long-term care. The most dramatic change will come in the form of long-term care insurance, and provision that was long championed by the Senator Edward Kennedy. Under the Community Living Assistance Services and Support Act (CLASS), all Americans will automatically be enrolled in a long-term care insurance program, but will have the option to opt out.

Under the Act, individuals will start paying a premium immediately, and will be able to use the benefit after five years of contribution to the program. The benefit, though, is not much, as it is expected to be about $50 per day to offset other long-term care costs.

The healthcare reform bill will also start to close the “donut hole” in Medicare Part D coverage for prescription drugs. Patients will immediately begin receiving a rebate for drug costs that fall into the gap, and drug manufacturers will be required to provide a discount on brand name drugs. Over time, the gap in coverage will be phased out entirely.

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Last year, the U.S. Drug Enforcement Administration began investigating allegations that some nursing homes were dispensing powerful narcotics to nursing home residents without a physician order. Because of the new scrutiny, however, nursing home and hospice trade organizations are arguing that many patients are now being left without pain medication as the nursing facilities try to find ways to comply with DEA regulations. Congress has also taken notice, and the subject will be addressed at a Senate hearing today.

The DEA intensified its efforts to battle abuse of prescription drugs in nursing home, after numerous reports of overmedication of patients in nursing facilities, many without prescription, and frequently used as a “chemical restraint,” not to treat a specific illness. In a letter to Congress last December, attorneys for the DEA said that allowing nurses to dispense medications without a doctor’s order, “trivializes the doctor-patient relationship and weakens the quality of care for the frail and infirm.”

Nursing home trade organizations, however, say that long-term care facilities don’t make available enough doctors to issue prescriptions every time. The DEA’s requirement on “hard copy prescriptions,” it says, places burdens on prescribers, pharmacists and nurses, and can lead to extended delays in the administration of pain medication.”

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The Sacramento Business Journal is out with an article accusing the State of California of exposing elderly nursing home residents to dangerous caregivers because state regulators have failed to implement a 2006 law that requires the creation of a centralized database for background checks on all long-term caregivers.

According to the article, an investigation by the state’s Senate Office of Oversight and Outcomes discovered at least 20 incidents where individuals who lost their certification as nursing assistance because of wrongdoing were cleared and hired in a different facility.

“There is no excuse for allowing people with known histories of abuse to work in residential care facilities for the elderly or as caregivers in any other setting,” said Michael Connors, an advocate with California Advocates for Nursing Home Reform, a non-profit that advocates on behalf of nursing home and residential care residents.

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A former aide at a home for the disabled has been arrested and charged with molesting two female residents. Curtis Cortez, age 59, is being held on $100,000 bail after his arrest, and is expected to be charged with seven felony counts of lewd and lascivious actions by a caretaker upon a dependent person.

From news accounts, it appears the man has confessed his crimes to police, at least partially. When police confronted Curtis about the allegations, he offered a “Hawaiian defense.” He told authorities that he gave frequent hugs to people because it was part of his Hawaiian culture. He then volunteered that he was having problems with his girlfriend, and that he did touch one of the disabled woman’s breasts and genitals.

From a civil liability standpoint it is an interesting case. Curtis himself would obviously be liable for sexual assault and battery, but probably unable to pay a civil judgment. The question is, would the home be liable? Generally speaking, an employer is not liable for the intentional criminal acts of its employees, unless the acts were engendered by, or arose out, the employee’s duties. This one would be a close call.

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A 76-year-old patient at the Ridgecrest Nursing and Rehabilitation Center in DeLand died after falling to the floor and lying there for 12 hours. Barbara Fasold fell out of her bed at approximately 5:00 a.m. and a fractured both legs and her shoulder, and was not discovered on the floor until a shift change at nearly 5:00 p.m. later that day. When discovered, Ms. Fasold was rushed to a local hospital, but was so badly injured in her fall that she died less than a week later.

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It is estimated that a nursing home with an average of 100 beds will experience between 100 and 200 falls every year. More concerning is that nearly 2,000 nursing home residents will every year from injuries related to a fall, and fall victims who survive often suffer debilitating injuries.

Nursing homes are required to prevent falls by providing adequate care-planning. Not all falls can be prevented, but if the nursing facility does an adequate job of assessing the risk of falling on a patient-by-patient basis, and then provide regular reassessments and interventions on an ongoing basis, particularly after a fall, many more falls would be prevented.

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All licensed nursing homes in California are licensed and certified by the California Department of Public Health, which conducts an annual inspection of every licensed skilled nursing facility in the state. In addition, the DPH is charged with the duty to investigate complaints of neglect or abuse, and issue the results of its investigation. Here is some general information about making a complaint against a nursing home.

First, who can make a complaint? Under California law, any person can make a complaint about a nursing home; it does not just have to be the resident, family member, or responsible party. Complaints may be made anonymously.

When is a good time to make a complaint? A complaint should be made whenever one considers the treatment problems to be serious enough to report. It is usually a good idea to express your complaints to the facility first, but if you feel like you’re not being taken seriously, call DPH.

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In their ongoing series on nursing oversight in the State of California, Tracy Weber and Charles Ornstein of ProPublica are out with another story about California’s shortcomings in regulating healthcare professionals. Weber and Ornstein reveal that the national database that tracks dangerous or incompetent caregivers is missing serious disciplinary actions against “what are probably thousands” of health care providers. The revelations apparently surprised federal health officials, who just last month proclaimed that “no data is missing.”

For almost twenty years the federal government has kept a database of disciplinary actions against doctors and dentist, and in 1999 individual state boards were required to include in the database reports on all other healthcare professional, including nurses, whose licenses were restricted or revoked. In California, however, not all penalized caregivers were included in the federal database. For example, California has formally disciplined 84 psychiatric technicians over the last two years, yet the federal database does not contain a single report of discipline against a psychiatric technician in the State of California.

The dangers of an incomplete database are obvious, as Dr. Sidney M. Wolfe of the Public Citizen’s Health Research Group observed, prospective employers of health care professions could be given “a false sense of security that somebody who may be really dangerous isn’t, because their name isn’t there.”

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The New York Times is out with an article about lack of oversight given to the more than 400 long-term acute care hospitals that operate in the United States. These hospitals, most of which operate as for-profit organizations, are supposed to provide care for individuals that are too sick for traditional nursing homes, but too stable to require regular hospitalization. According to the article, long-term care hospitals were much more likely to be cited for serious violations of Medicare rules than regular hospitals, and had a higher incidence of bedsores and infections.

While the care might be questionable, the no one will question the profitability of these health care providers. In 2007, the profit-margins on long-term care hospitals was 6 percent on Medicare patients, which regular acute-care hospitals lost an average of 6 percent on Medicare patients. How does that happen? In a presentation last month by Select Medical, an owner of several long-term care hospitals, to its investors, it revealed that it maintains its profits by monitoring staffing and lowering supply costs.

Those of us who represent victims of neglect in long-term care facilities know that “monitoring staffing” is another way of saying that it keeps staffing levels at the lowest numbers allowable by law. That usually means a lower quality of care. As for Select Medical, this approach is victimizing patients.

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