Friday, December 18, 2009

1 Nurse, 2 Caretakers Indicted For Patient Neglect

FRANKFORT, Ky. – Attorney General Jack Conway announced the indictments of a nurse and two caregivers in connection with the alleged neglect of a patient at Creekwood Place Nursing Home in Logan County, Ky.

Barbara A. Moore, a nurse from Beechmont; Destiny W. Duncan, a certified nursing assistant from Russellville; and Melissa L. Lyon, a certified nursing assistant from Olmstead, were each indicted by the Logan County Grand Jury on one count of knowing abuse/neglect of an adult under KRS 209.990(2), a Class C felony.

Each person could face five to 10 years in prison if convicted.

The indictments allege that Lyon performed a single person lift to transfer the victim into bed when the victim’s care plan required a two person lift. This caused the victim to receive a fractured leg. Lyon, along with Duncan, allegedly concealed the true facts of the incident and Moore allegedly failed to call a physician or family member or check on the victim, all of which caused the victim prolonged suffering and pain.

Investigators from the Office of the Attorney General’s Office of Medicaid Fraud and Abuse Control investigated this case and presented it to the Logan County Grand Jury. The Grand Jury issued a summons for each defendant to appear for arraignment in Logan Circuit Court on Dec. 10, at 8:30 a.m. Logan County Commonwealth’s Attorney Gail Guiling is handling the prosecution of the case.

Nebraska Supreme Court Refuses to Compel Arbitration in Nursing Home Case

The present case comes as the U.S. Congress considers the Fairness in Nursing Home Arbitration Act of 2009. This Act would render pre-dispute arbitration clauses in nursing home contracts unenforceable (Senate version: S.512 and Status; House version: H.R. 1237 and Status).

In Koricic v. Beverly Enters., 278 Neb. 713 (No. S-08-1167), Frank Koricic took his elderly mother, Manda Baker, to Beverly Hallmark (now operating as Beverly Enterprises), a nursing home in Omaha, Nebraska. In 2005, upon her admission into the facility, Koricic signed several documents for his mother, including an optional arbitration agreement.

Baker died in 2007, she allegedly sustained injuries and pain and suffering because of Beverly Hallmark’s negligence. Koricic sued Beverly claiming negligence, breach of contract, and breach of fiduciary duty. Beverly moved to compel arbitration of the claims. The district court concluded that the arbitration agreement was enforceable against Baker’s estate because Koricic had actual authority to sign the arbitration agreement. Koricic now appeals.

The Nebraska Supreme Court stated that whether an agency relationship exits and the scope of that authority are questions of fact. The court found that Baker was an immigrant from Croatia and had limited ability to read, speak, or understand English. Koricic often had to explain the documents to her, but he only took action upon Baker’s direction. Also, Baker was never declared incompetent nor granted Koricic power of attorney over her affairs. When Baker was admitted into the nursing home, Koricic signed the paperwork at an office, outside of Baker’s presence and Koricic never discussed the content of the admission papers with her.

The court discussed agency law principles (actual and apparent authority) and stated that “nothing in the record suggests that a reasonable person should have expected an arbitration agreement to be included with admission documents for a nursing home.”

The court held that Koricic did not have the authority to enter into an arbitration agreement on behalf of his mother because it was not a condition of admission. Accordingly, it remanded the case for further proceedings.

Chicago Jury finds Nursing Home Guilty in Bedsore Death

OLIET -- A local nursing home must pay up for a patient who died after suffering a huge bedsore that ate through her skin to the bone.

A jury on Monday ruled against Rosewood Care Center and awarded $51,000 to the family of Catherine Taylor in connection with her death in 2004. Rosewood Care Center must also cover the attorney fees incurred by Taylor's children over the course of the 5-year-old lawsuit.

"We feel vindicated that we proved that they did something wrong," said Frank Cservenyak, one of the attorneys representing Taylor's daughter, Mary Pat Barney, who was acting as the administrator of her mother's estate.

Taylor, who was 88 when she died in December 2004, was a resident of Rosewood in July and August 2004, On Aug. 19, 2004, Taylor, a former teacher, was taken to Provena Saint Joseph Medical Center and six days later "underwent a procedure to remove bedsores and treat bone infections brought on by her confinement to her bed and her exposure to urine and other bodily fluids during (her) care," according to the complaint against Rosewood.

"She had a hole in her backside the size of my fist," said an attorney representing Taylor's estate.

And Pyles said the bedsore was the fault of the nursing home staff.

"Rosewood screwed up on 8/18 (2004)," he said. "Everybody who testified in this case has told you about it, and it caused Catherine Taylor's death."

One of the attorneys representing Rosewood, pointed out that Taylor had bedsores on other parts of her body, proving that she did not suffer them as a result of neglect.
"If she wasn't being turned, how did that happen?" He asked the jury in his closing argument. "Something happened to her body that night," McCubbin said. "I don't know what it was. I don't think the doctors know what it was.",4_1_JO02_LAWSUIT_S1-091202.article