AARP joins Ventura Class Action Lawsuit

The Ventura County Star did a nice article today about AARP Legal Foundation joining the Class Action lawsuit Jody Moore and I filed in Ventura County.

As the article points out, and Dr. Proffett admits, the practice of providing drugs to patients without permission or consent was rampant for years.  We are actively seeking witnesses as well as potential Class Representatives to this practice from any of the nursing homes in Ventura County in the last three years.

If you know anyone who was prescribed behavioral medications in a Ventura County Nursing Home in the last three years, please encourage them to call me.  Dr. Proffett says he has stopped this dangerous (and illegal) practice, but we don't yet know the full scope of the problem.

http://www.vcstar.com/news/2012/may/01/aarp-joins-antipsychotic-drug-lawsuit-against/

AARP Joins the fight!

Humbled and thrilled to report that AARP Legal Foundation has joined as co-counsel in my Class Action case involving over-medication of nursing home residents without consent.

AARP Press Release goes out tomorrow!

Inspector General and Others Condemn Antipsychotic Drugs in Nursing Homes

The Federal Office of the Inspector General (OIG) released a report in May exposing the widespread misuse of antipsychotic drugs in nursing homes.  The OIG l found that “nearly one in seven elderly nursing home residents, nearly all of them with dementia, are given powerful atypical antipsychotic drugs even though the medicines increase the risk of death and are not approved for such treatments...”  Even worse, the auditors found that 83 percent of antipsychotic prescriptions for elderly nursing home residents were for uses not approved by federal drug regulators, and 88 percent were to treat patients with dementia - for whom the drugs can be lethal.”

Senator Grassley, who requested the report to evaluate the quality and cost of these drugs in nursing homes focused on the financial impact when he said the report reveals an "astounding waste of taxpayer dollars."

In California, 19% of the deficiencies issued for violations of regulations which harm residents in 2007 were for "Unnecessary  Drugs". To put this in perspective, as of 2008 it is estimated that about 1.5 million Americans lived in nursing homes, and about 22% of the 5.3 million people who are 85 or older had a nursing home stay in 2006. There are an estimated 16,000 nursing homes in the United States.

Too often, the families are not told of the risks, benefits and alternatives to these dangerous drugs.  They may be embarassed that their loved one is exhibiting strange behavior, and just assume that the doctor would not recommend a drug merely for the convenience of the nursing home staff.  Unfortunately, this happens every single day.

As a firm dedicated to improving the lives of California's elderly through advocacy, it is distressing to say how frequently we come across instances of antipsychotic drugs being used on dementia patients. Often times it is a result of an under-staffed skilled nursing facility attempting to subdue or sedate a difficult patient rather than using scarce personnel to provide the necessary supervision and care. Typically, a facility employee will chart their their need to, “calm down”, “relax” or “stabilize” a “stressed out”, “depressed”, “anxious” or “combative” dementia patient - as a justification for use of a psychotropic medication.

And the Doctor?  Well he/she is a willing partner in this conspiracy if he/she allows the use of these drugs just to "treat behavior."  RED FLAG:  Generally, doctors don't "treat" behavior unless the patient has Obsessive Compulsive Disorder, Schizophrenia, or another psychiatric condition where behavior is used to diagnose the condition.

The California Advocates for Nursing Home Reform (CANHR) is one of many stakeholders trying to bring this important issue into the public discussion through education and advocacy.  Their fantastic report and information about their Campaign to Stop Chemical Restraints can be found here.

If you have any questions, please contact our office for a free consultation.

The real victims of "tort reform"

If I had to do one thing to protect seniors and disabled adults living in long term care in California, I would wind back the clock and stop "tort reform" from passing in California.  As you may know, since 1975 cases against "Health Care Providers" in California have been severely limited by MICRA. (The Medical Injury Compensation Reform Act.)  This law unfairly capped the recovery of victims, changed the rules of evidence to favor defendants, limited the amount of fees victims lawyers can charge but placed no similar limits on defense lawyers, and gives the defense the option to pay their verdict over decades assuming you survive.  While the $250,000 limit on non-economic damages may have seemed like a lot of money in 1975, it works out to about $83,000 in today's dollars.  The legislature was supposed to periodically increase the cap, but they never have.  Because victims of Elder Abuse and Neglect are not working, they generally have no economic damages.  This means, essentially, every patient in every nursing home has a price on their head of $250,000 at most.  

Today I read a great piece in the Atlantic Monthly that discusses the horrible result caused by the fact that "tort reform" placed a cap on the victims of the Metrolink train crash that devastated so many families, most of them with some connection to Ventura County.  The foreign corporation at fault for this accident has plenty of insurance to cover this claim, but under our "tort reform" they don't need to use it.  

Well worth a read, http://www.theatlantic.com/national/archive/2011/07/the-real-victims-of-tort-reform/242030/

One last thought:  Take David's slingshot and give it to Goliath.  Now you understand "tort reform".

Mr. Johnson Receives William F. Taylor Award.

Recently, I was honored to be awarded the William F. Taylor Memorial Award presented by the California Advocates for Nursing Home Reform (CANHR). I received this award for my work in creating the Elder Justice Advocate ™ program, where attorneys and their clients pledge a portion of every single case to prevent further abuse and neglect of California seniors in long term care. While I strongly believe that Elder Abuse and Neglect litigation makes a profound difference by improving the care in the community where the cases are brought, through this program we are making sure all seniors in California stand to benefit from these important cases.

CANHR is a nonprofit group dedicated to improving care, quality and choices for California’s elders. CANHR works closely with attorneys and Ombudsman programs throughout California to advocate and inform. They publish www.nursinghomeguide.org, www.residentialcareguide.org, and offer a wide range or counseling services to consumers, family counsels and attorneys with questions about long term care. CANHR also advocates for better staffing in our nursing homes and against the abuse of anti-psychotics.

A Memorial to Mr. Taylor can be found at http://www.canhr.org/memorials/In_Memory.htm

I am proud to call myself a supporter or CANHR, a CANHR Elder Justice Advocate ™ attorney and a partner with them to improve care for the elderly in California.

The Importance of Staffing

What is staffing?

Staffing is the ratio of care providers to residents. If I told you there was one teacher in a classroom and asked if the children were getting a good education, you would ask, among other things, how many students are there, right?

The staffing ratio is measured per patient day, midnight to midnight. Why? Because more staff is needed during the day shift, when there are multiple meals, various therapies, assisted trips to the bathroom, baths, numerous medication passes, diaper changes, etc. During the night shift, most residents are sleeping.

Let me give you an example. If there are 10 residents in a facility and during a 24-hour period there are 5 staff members who work hour shifts and provide direct care to those residents, then there is a total of 40 hours of care provided. The ratio is expressed as hours per patient day (PPD), so in my example you would divide 40 (the hours of care provided) by 10 (the number of residents) and arrive at PPD staffing ratio of 4.0. This means, in theory, in a 24-hour period each resident should get 4.0 hours of staff time and attention.

Why is staffing important? Numerous studies have proven that staffing is the single most important predictor of patient outcome in a nursing home. Even more important than diagnosis. Consider that for a moment! This means a sick person in a properly staffed nursing home has a better chance for a positive outcome than a well person in an understaffed nursing home. Having done nursing home litigation for the last thirteen years, I can tell you this is absolutely true.

95% of the Elder Abuse cases I file involve understaffing. Staffing is the single largest item on the operating budget of every nursing home. The corporation that runs the nursing home wants to maximize profits, so they start by cutting one nurse, then a Certified Nursing Assistant (CNA), then more staff, and before long the question is simply this: what is the fewest number of people we can possibly employ in this place? This is why most nursing homes have employee turnover of 80% to 90% per year. It is demoralizing to work in a place where, no matter how hard you try, you can’t get all the work done. And they aren’t making crates, they’re (supposed to be) taking care of people.

The standard of care in California is a minimum PPD of 4.1. Unfortunately, because of the incredibly powerful nursing home lobby in Sacramento, the “legal minimum” right now in California is 3.2. This means the State of California will only enforce 3.2; it’s up to us to enforce 4.1. When the 3.2 bill was passed several years ago, it was supposed to go up by .1 per year, but we are still waiting.

What is Elder Abuse?

Elder Abuse can come in many forms. I specialize in litigation against long term care facilities such as Skilled Nursing Facilities, Residential Care Facilities for the Elderly (RCFE), Assisted Living Facilities and Intermediate Care Facilities.

California law defines elder abuse as "physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (Welfare & Institutions Code, Section 15610.07 and in Penal Code 368) "Elders" are defined as persons 65 years of age or older.

Neglect is further defined as: "The failure to exercise that degree of care that a reasonable person in a care providing capacity would exercise such as failure to assist in personal hygiene, provision of food, clothing or shelter, provision of medical care, or to protect from health and safety hazards or to prevent malnutrition or dehydration."

There are certain fact patterns that commonly arise in Elder Abuse litigation, such as the development of bedsores in a Skilled Nursing Facility and the failure to transfer to a higher level of care in an RCFE.

My office provides free consultations, and this includes consultations with other lawyers who have questions about this highly specialized type of litigation.