On October 16th, the Nebraska Supreme Court ruled that an arbitration agreement between a nursing home and one of its residents was invalid because the resident’s son did not have the authority to sign a voluntary arbitration agreement on her behalf. 

Frank Koricic lived with his elderly mother, Manda Baker, and assisted her in her activities of daily living.  Ms. Baker was originally from Croatia and had limited ability to read, speak, or understand English.  Because of a decline in health, Ms. Baker was admitted to the Beverly Hallmark nursing home (now doing business as Beverly Enterprises) in Omaha, Nebraska. 

Upon admission, her son, Frank, signed several documents on her behalf, including an optional arbitration agreement (“Resident and Facility Arbitration Agreement”).  This arbitration agreement was not a condition of admission and provided that all claims or disputes arising out of any services or health care provided by the nursing home facility would be resolved exclusively by binding arbitration. 

In 2007, Ms. Baker allegedly sustained injuries as a result of nursing home negligence while in residence at the Beverly Hallmark.  Ms. Baker later died in September 2007.  Frank, Manda’s next of kin and trustee of her estate, filed suit against Beverly Enterprises, alleging negligence, breach of contract, and breach of fiduciary duty. 

Beverly Enterprises moved to dismiss the case and compel arbitration under the arbitration agreement that Frank had signed at the time of his mother’s admission.  Frank argued that the facility could not enforce the agreement because he, not his mother, had signed the arbitration agreement.  The district court ruled that that the arbitration agreement was valid and enforceable against Ms. Baker’s estate because she had authorized her son to sign medical authorizations for her.   

The Supreme Court reversed and remanded the decision of the district court, concluding that Ms. Baker’s son did not have authority to sign the arbitration agreement because it was not a condition of admission.  Frank had actual authority as his mother’s agent to sign medical documents for her.  Frank also had actual authority to sign the paperwork required for her admission to the nursing home facility. 

However, the arbitration agreement was optional and not required for Ms. Baker to reside at the facility.  Therefore, Frank did not have actual authority to sign the arbitration agreement. 

The Nebraska Supreme Court also determined that Frank did not have apparent authority to sign the arbitration agreement because there was no evidence that Ms. Baker knew Frank would be asked to sign an arbitration agreement, or that she indicated to any staff members that she authorized Frank to sign such an agreement, or that she later ratified the agreement. 

Furthermore, a reasonable person should not have expected an arbitration agreement to be included in the nursing home’s admission documents.  Thus, the nursing home facility was not justified in relying on Ms. Baker’s authorization of her son to sign admission papers as authority to bind her to an arbitration agreement.  The Nebraska Supreme Court reversed the trial court’s order to dismiss Frank Koricic’s complain and remanded the case for further proceedings.   

This decision could affect the validity of optional arbitration agreements where surrogates sign nursing home admission materials, depending on the extent of the surrogate’s authority to sign documents on the resident’s behalf. 

Thanks to Heather Keil, J.D. for her assistance with this article.

Sources:

Frank Koricic v. Beverly Enterprises, Nebraska Supreme Court, 2009

Related Nursing Homes Abuse Blog Entries:

Landmark Nursing Home Arbitration Award May Cause Facilities To Re-Evaluate Patient Care

AARP Joins Fight To Preserve Right To Jury Trial

Should You Give Up Your Right To Trial?

"There are many things nurses have in common," says Michael Singer, who came up with the concept for the magazine. Some of those shared issues are working crazy hours, being in careers that are physically and emotionally demanding, and constantly being in a caregiving role. "We also found that nurses were doing so many incredible things but were really under-appreciated in so many ways," he adds. "So many nurses go out of their way to help patients, and that was a real source of inspiration for us. We felt like there were stories that really needed to be told."

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We've all gone through the unpleasant task of preparing for a colonoscopy.  Drinking an unpleasant liquid or popping pills for the purpose of giving the doctor a better view of our colon's contents is.... anything but pleasant.  Now, news has surfaced that, depending on the product you used to prepare for the procedure, the experience may not have been merely unpleasant-- but downright dangerous.

On December 11, 2008, the FDA ordered the makers of Visicol and OsmoPrep to put a black box warning on their products alerting consumers to the fact that the drugs can cause kidney damage or death. The warning came after the FDA confirmed more than 20 reports of a severe kidney injury called acute phosphate nephropathy after people consumed the products.  Acute phosphate nephropathy may progress resulting in: kidney failure, long-term dialysis, the need for a kidney transplant or death. 

On the heels of the FDA warnings regarding Visicol and OsmoPrep, C.B. Fleet Company, the manufacturer of Fleet Phoso-Soda and Fleet Phoso Soda EZ Prep Bowel Cleansing System, stopped selling the products over-the-counter without a prescription.

Visicol, OsmoPrep, and the Fleet Phoso-Soda products all contain high doses of sodium phosphate that works to clean out peoples bowels before medical procedures such as colonoscopies.  

According to Dr. Joyce Korvick, deputy director of the FDA's Division of Gastroenterology Products at the Center for Drug Evaluation and Research, "Of the reported cases, three were biopsy-proven cases of acute phosphate nephropathy.  The onset of the kidney injury in these cases varied, occurring n some within several hours of the use of the products and in other cases up to 21 days after use."

The FDA's warnings applicable to Visicol, OsmoPrep and Fleet Phoso-Soda products are particularly relevant to elderly people, because studies have repeatedly shown medical complications in the following demographics after they take oral sodium phosphate tablets:

• People over 55-years-old
• People suffering from dehydration
• People suffering from kidney disease
• People taking medications to control blood pressure (angiotensin converting enzyme inhibitors- to lower blood pressure or angiotensin receptor blockers- used to treat high blood pressure)
• People taking anti-inflammatory medications (including many arthritis medications or ibuprofen)

Symptoms of Acute Phosphate Nephropathy:

People with acute phosphate nephropathy may or may not have physical symptoms of their illness. In the case of those with no physical symptoms, blood tests that measure kidney function can be used to confirm the diagnosis.

The majority of people with acute phosphate nephropathy have some physical manifestation of the disease including one or more of the following symptoms:

• Reduced urine output
• Rapid energy loss
• Swelling in the legs and ankles

If you have a loved one who suffered acute phosphate nephropathy, kidney failure, the need for a kidney transplant, the need for long-term dialysis or died after taking a Fleet product, Visicol or OsmoPrep, you may have legal rights for damages against the manufacturer of the product. Additionally, if your family member was administered the drug at medical facility such as a nursing home or hospital, a cause of action may also exist against that facility.

At Strellis & Field, we pride ourselves on a hands-on approach when evaluating every case.  We believe our rigorous case analysis with some of the leading medical professionals, helps secure the best results for our clients.  As we have done for more than 30 years, we will evaluate your potential case at no expense for you.  (888) 424-5757

Resource:

Oral Sodium Phosphate (OSP) Products for Bowel Cleansing (marketed as Visicol and OsmoPrep, and oral sodium phosphate products available without a prescription), FDA 12/11/2008

Registered Nurses

Registered nursing tops the health-care occupations with the greatest number of total jobs (2.5 million). Openings are expected to rise 23 percent from 2006 to 2016. Recent news reports say that 116,000 jobs for registered nurses are currently open in hospitals, with another 100,000 unfilled positions at nursing homes. An additional 587,000 new jobs are predicted to open, which makes nursing the single-largest occupation in terms of career growth.

Prepare to land an opening by completing an online associate or bachelor's degree program in nursing. The median 2008 annual wage for registered nurses was $62,450, with top earnings at $92,240.

View the full list of recommended careers.

One of the nursing home negligence cases my office is currently investigating involves the death of a man related to complications related to amyloidosis.  Turns out, the man was suffering from an advanced bed sore on his coccyx (also called pressure ulcers, pressure sores or decubitus ulcers) that had progressed so far that the bone in the area had become infected (osteomyelitis).

Elderly nursing home residents, especially those suffering from other diseases such as bed sores, have a higher risk of developing amyloidosis, a disease which can damage various tissues and organs.  This can cause dangerous complications in residents who are already weak from advanced age or underlying disease.

Amyloidosis is a group of diseases caused by abnormal deposits of amyloid protein (usually produced by cells in bone marrow) in the body’s tissues and organs.  The disease frequently affects the heart, kidneys, liver, spleen, nervous system, and gastrointestinal tract.  The amyloid protein can deposit in a localized area (localized amyloidosis) or affect tissues throughout the body (systemic amyloidosis).  Amyloidosis is diagnosed for testing for the amyloid protein in a biopsy of involved tissue. 

Systemic amyloidosis is classified into three major types:

• Primary (AL) amyloidosis
• Secondary (AA) amyloidosis
• Hereditary or Familial (ATTR) amyloidosis

Primary amyloidosis, the most common form of amyloidosis, occurs when a plasma cell in the bone marrow spontaneously overproduces a particular protein portion of an antibody.  AL can affect many areas (heart, kidneys, liver, spleen, nerves, intestines, skin, tongue, blood vessels) and can occur with bone marrow cancer (bone marrow cancer), but is a disease entity of its own.

Secondary amyloidosis occurs as a result of another illness (multiple myeloma, chronic infections including tuberculosis and osteomyelitis, or chronic inflammatory diseases including rheumatoid arthritis and ankylosing spondylitis).  It usually affects the kidneys, spleen, liver, and lymph nodes.  Treatment for AA is usually treating the underlying illness.

Familial amyloidosis is a rare form of inherited amyloidosis that is an inherited autosomal dominant disease (meaning that the offspring of a person with the condition has a 50% chance of inheriting it).  ATTR usually affects the liver, nerves, heart, and kidneys. 

The signs and symptoms of amyloidosis depend on the tissues or organs affected.  The symptoms result from abnormal functioning of the organs and tissues involved.  They may include:

• Swelling of ankles and legs
• Numbness or tingling in hands or feet
• Severe fatigue
• Weakness
• Significant weight loss
• Loss of appetite
• Shortness of breath
• Irregular heartbeat
• Diarrhea or constipation
• Protein in urine
• Feeling full quickly
• Enlarged tongue
• Difficulty swallowing
• Swelling
• Skin changes (thickening or easy bruising)
• Purplish patches around the eyes

 Risk factors for amyloidosis including:

• Age – older than 65
• Other diseases – having chronic infections or inflammatory disease or osteomyelitis
• Family history – history of amyloidosis
• Kidney dialysis – large, abnormal proteins can build up in the blood

The severity of the disease depends on which organs and tissues are affected.  The disease can result in dangerous complications including kidney damage, heart damage, and nervous system damage.  Kidney damage can result when amyloidosis affects the kidneys.  Kidney problems frequently translate to damage with the bodied blood filtering system, allowing protein to leak from the blood into the urine.  This may result in kidney failure. 

Heart damage can also occur when amyloidosis affects the heart.  This reduces the heart’s ability to fill with blood between heartbeats, meaning less blood is pumped with each beat.  Nervous system damage can also occur when amyloid protein deposits affect the nerves.  This can result in numbness, tingling, or difficulty controlling blood pressure. 

There is no cure for amyloidosis, but treatment may help manage the signs and symptoms of the disease, limit further production of amyloid protein, and treat any underlying disease.  Several treatments of primary amyloidosis are being studied including medicine and peripheral blood stem cell transplantation. 

Nursing home residents suffering from painful pressure sores are at an increased risk for amyloidosis.  Should a pressure sore patient develop amyloidosis, they run the risk of organ tissue damage and increased risk of amyloid protein deposits.  Also, paraplegic patients suffering from sepsis as a result of pressure sores also face complications stemming from amyloidosis. 

Sources:

Mayo Clinic: Amyloidosis

Boston University: Amyloid Treatment and Research Program

Amyloidosis Foundation

Pressure sores: aetiology, treatment and prevention (Colin Torrance)

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The Need for Help Hits Close to Home

What is Legionnaires Disease?

Legionnaires disease is an infectious disease caused by the Legionella bacteria.  There are two types of Legionnaires disease: Legion fever (where people generally develop pneumonia) and Pontiac Fever (symptoms similar to the flu).

Legionnaires disease got its name when a group from the American Legion conference all developed pneumonia.  When scientists analyzed the group, they noticed that they all had the same bacterium called Legionella.

Although Legionnaires' disease not contagious, outbreaks may occur in long-term care facilities due to contaminated water or heating equipment.  Most authorities believe Legionnaires is contracted by inhaling airborne water droplets containing legionellae. Some authorities also believe that Legionnaires may be acquired by drinking contaminated water or using contaminated water to clean wounds.

Legionnaires disease is particularly dangerous for the elderly because they are significantly more susceptible to complications from pneumonia and fever compared to the general population. Fatality rates attributed to legionnaires are believed to be between 5 and 50%.

Resource:

Legionnaires' Disease in Long-Term Care Facilities: Overview and Proposed Solutions, Meena H. Seenivasan, Victor L. Yu, Robert R. Muder (Journal of American Geriatrics Society, 53:875-880, 2005.

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Nonetheless, when many people complain of poor care at the same facility--- and many of the allegations are substantiated, there should be real cause for concern.

CBS 2, a Chicago television station, recently reported on such a facility, Westmont Nursing & Rehab Center, in Westmont, IL.  In its report, CBS interviewed staff and family members who witnessed abusive situations such as:

• Failing to provide feeding assistance to patients who need help with meals
• Unexplained bruises
• Dirty living conditions
• Giving cold showers to difficult patients
• Staff 'throwing' patients into bed

Lest anyone suggest that the news reporter intentionally selected these people for her story to sensationalize a tragedy, the Illinois Department of Public Health investigated many of the allegations and confirmed mistreatment.  

Out of 31 investigations relating to abuse, the Illinois Department of Public Health substantiated 11 claims for poor quality care and one case of confirmed abuse.

Currently, Westmont Nursing & Rehab faces $200 per day in fines due to safety violations.

Time to look for another facility?

The thing that caught my attention regarding this story, is that many of the families who were interviewed for the story are not seeking another facility for their loved ones. In my humble opinion, for both safety and litigation-related reasons, they need to begin looking for alternative facilities for their loved ones. By keeping their family members at the nursing home, there is an implicit understanding that they approve of the care the facility is providing.  

Should a lawsuit against Westmont come along, the argument will certainly be made that by keeping their loved ones in the facility-- after they became aware of the suspected abuse-- that they somehow approved of the care.

Maybe I'm wrong, but I'll bet many jurors will buy into the nursing home's lawyers argument, 'If they thought the nursing home was doing such a bad job caring for their loved one, why did they keep them here?'

Related:

When Bruises Can't Speak For Themselves: The Difficulty Proving Abuse Of Disabled Nursing Home Residents

What Are Signs Of Nursing Home Abuse?

Just Do It. Photograph Everything

IDPH Surveys for Westmont Nursing & Rehab Center

Pink runs, pink toothpaste packages, pink yogurt.

I am sick of pink articles, pink signs, pink nail polish.

Every time I see pink it reminds me that my mom has cancer.

It reminds me that the first time an “expert” saw her breast mass two years ago they said it was nothing.

You bastard.

You fucker.

You may have taken my mother away from me. If you would have done your job she may not be going through chemo. She may have had no lymph node involvement.

22

TWENTY-TWO LYMPH NODES

EVERY

FUCKING

ONE

You should wake up for the rest of your life and explain to her grandchildren about why their first lesson in death wasn’t their dog, it was their Beama.

Please nurses, doctors, techs at Mayo Clinic.

Please, Please take care of my mom.

Please make up for the mistakes of another.

Please give her more Christmas mornings, more afternoons of knitting, more time to teach her grandchildren all of the things she has taught me.

I cannot fathom a day without my mom. My teacher, my guide, my wisdom, my strength.

Not yet.

Not now.

The pink that is so empowering, that gives hope.

Please be my hope too.

Go over and let her know that you are thinking of her and her Mom during these trying times.

To take the survey, click here takethesurvey.com/rawvoice

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