A Legal Matter
Sometimes, it takes a lawsuit to punish a bad nursing home. But state lawmakers may rein in the lawyers by making it tougher to sue.
In June 2001, Katherine Johnson, 72, was found unconscious at her apartment on Camelback Road. Doctors at Phoenix Baptist Hospital said she was suffering from dehydration. After three days at the hospital, she was sent to Glendale Care Center. A doctor told David Leary that his mother should be able to return home after a few weeks of rehabilitation.
She died 12 days later, on the Fourth of July. She had a bedsore on her buttocks the size of a football. Surgeons told the family that an emergency colostomy to divert Johnson's waste from the sore would probably kill her, but she would surely die without it.
Johnson was rushed to the hospital at her son's insistence, after he found his mother in a fever, lying in feces, unresponsive, covered by blankets in a sweltering room with the window left open. She had a temperature of 102.5 and a pulse of 130 beats per minute when she got to Phoenix Baptist.
Leary says nurse's aides at Glendale Care Center were watching television.
Leary hadn't known that the sore was serious until his mother was rolled over in the emergency room. The stench was overpowering when a bandage fell from the rotting wound, which gushed yellow and green drainage. She screamed as nurses started scrubbing away dead flesh.
"I still see my mom laying there, suffering, hollering, crying, stinking," Leary told a Maricopa County Superior Court jury last month. "In the state of Arizona, they won't allow an animal to be treated in this manner. It should be equally unacceptable for my mother to be treated that way. I will never forget it."
That concluded the day's testimony in a trial that began September 20 and isn't expected to end until early this month. Leary looked at his shoes as the jury filed out, his shoulders heaving. Then he walked, sobbing, from the courtroom.
This is a big-money case. Pat McGroder, one of Phoenix's best-known personal-injury lawyers, is on the Johnson family's legal team. McGroder plays for high stakes. He represented Jason Schechterle, a Phoenix police officer severely burned when his Crown Victoria blew up, winning a settlement from Ford, with terms undisclosed. He was also the lawyer for Bishop Thomas O'Brien, who got off with probation after a hit-and-run that killed a pedestrian.
According to discharge notes from Phoenix Baptist, Johnson's sore was the size of a quarter when she was sent to Glendale Care Center. After she was rushed back to the hospital, the Glendale staff added addendums to her record stating that the sore was huge when she arrived at the nursing home.
Glendale Care Center is owned by Tennessee-based Life Care Centers, the largest privately held nursing home chain in the nation. The company owns nine nursing homes in Maricopa County. A Life Care accountant has testified that Glendale Care Center hasn't been profitable for at least five years. However, Life Care Centers has plenty of money, according to Meyer Cohen, a nursing home expert who examined the company's financial statements.
While the company's books show it has broken even or been slightly in the red during recent years, those are numbers crafted to avoid taxes, Cohen says. He told the jury that Life Care Centers has realized annual profits of more than $20 million in recent years if depreciation and amortization aren't factored in.
Leary filed a complaint with the state Department of Health Services shortly after his mother died. An inspector who didn't check the hospital's records came back saying the charges couldn't be substantiated. Leary went back to the health department, demanding they take another look. This time, a different inspector looked through records at Phoenix Baptist and determined that Glendale Care Center had, in fact, harmed Johnson, ruling the home failed to "give each resident care and services to get or keep the highest quality of life possible."
The penalty? The federal government imposed a two-day ban on accepting new Medicaid patients. The state levied no sanctions.
It was an incredibly light punishment, considering Glendale Care Center's record. And it's typical, says H. Michael Wright, an attorney on Leary's legal team. Wright, who represented the Arizona Trial Lawyers Association when lawmakers last year considered curbs on nursing home lawsuits, says he's handled about 40 cases against nursing homes since 1996. Only three times, he says, was a home in his crosshairs hit with a fine from the government.
The year before Johnson died, the federal government fined Glendale Care Center $17,000 and barred the home from taking new Medicaid patients for three weeks. The state Board of Nursing suspended the home's training program for certified nursing assistants. The sanctions came after the staff at St. Joseph's Hospital complained that patients from the nursing home were showing up with pressure sores and dirty feeding tubes. Judging from lawsuits, the punishments were mere wrist taps.
Plaintiffs say at least four Glendale Care Center residents besides Johnson died because of poor care in 2000 and 2001. Life Care Centers has settled most of the cases.
Billy Raley, 59, died in March 2000. Brandon Peters, his family's lawyer, says the staff at Glendale Care Center gave him a lethal dose of morphine. The lawsuit was dismissed in September because of an error, Peters says, but will be re-filed.
James Bryley, a 28-year-old quadriplegic, died in June 2000 because of bed sores, according to an autopsy report. The nursing home argued that he had refused treatment, but that didn't pass muster with Betty June Scira, a Tucson nurse who visited him during his final days at Glendale Care Center and found him emaciated and dirty.
"The condition that Mr. Bryley was in allowed no dignity and respect, even of a dying person, and I've seen hospice patients many times," Scira said in a deposition. "I've just never seen such a loss of dignity in my life. Never. It was like a concentration camp thing you would see." Life Care Centers settled a lawsuit brought by Bryley's mother.
Marilyn Mindham suffered from multiple sclerosis and a genetic disease that caused her bones to fracture easily. She developed a pressure sore so massive that a surgeon had to remove metal hardware that held her bones together so he could cut away the mess. She died from sepsis in July 2000 at age 52. Life Care Centers settled the case, which was brought by McGroder and Wright.
Ruth Mae Washington, who died the day after the state ruled that Glendale Care Center hadn't provided proper care to Johnson, was admitted to the nursing home three days before Johnson. Like Johnson, she ended up with a bedsore on her backside that went down to the bone and required surgery. But that isn't what killed her, her family says. Records from the nursing home and its pharmacy showed that Johnson had never been given a drug prescribed to heal a stomach ulcer. She died from complications from peritonitis after the ulcer burst, her family alleges. Two doctors, including the surgeon who repaired the ulcer, were prepared to testify that the ulcer burst as long as four days before she was taken to St. Joseph's Hospital at her family's insistence. She arrived at the emergency room with a temperature of 104.4 and a pulse rate of 101 beats per minute; in Washington's chart, a Glendale Care Center nurse wrote that she "left facility in no acute distress."
When Washington left the nursing home, she weighed 119 pounds, 50 pounds less than she'd weighed a month earlier. Yet the nursing home didn't summon a dietitian, according to her family's lawsuit filed by McGroder and Wright. The company settled the case. The state found no violations.
In the Johnson lawsuit, two former Glendale Care Center administrators have testified that the nursing home was in crisis while these people were dying. One used the word "meltdown"; the other said care systems were "massively broken."
The state's response to problems surprised even the administrators. In a July 2001 internal memo, the home's administrators said they expected state inspectors to issue 10 citations after an investigation into allegations of untreated pressure sores. The home ended up with three violations, none deemed serious enough to have harmed residents.
Life Care Centers did not respond to an interview request made through its attorney.
Problems continued at Glendale Care Center after the deaths, with no punishment from regulators.
In June 2003, inspectors found that the home didn't promptly send a resident to the emergency room after he broke his wrist and bumped his head after falling from his wheelchair. A doctor told the staff to send him to the hospital if his condition worsened. Normally a "happy-go-lucky" fellow, according to his roommate, the resident stayed in bed, refused meals, mumbled and appeared confused, according to the roommate and a staff member who said he "never made sense" and was "totally different" after the fall. He kept trying to remove the bandage from his fractured wrist. He went nearly two hours at one point without having his vital signs checked and more than three hours immediately after the fall without the staff checking for signs of neurological impairment. What checks were done showed that he was running a fever and had elevated blood pressure.
Three days after the fall, a nurse found him unconscious when she went to his room to give him medication. Instead of sending him to the emergency room as the doctor had ordered, the home telephoned an on-call medical provider. When the resident finally made it to the hospital, a CT scan showed bleeding in his brain. He died two days later. State inspectors issued three citations but determined none of the violations had harmed the resident, so there were no sanctions.
The same day the resident was found unconscious, inspectors paid an unannounced visit to investigate a complaint that dialysis patients weren't being given prescribed medication, including antidepressants, painkillers, insulin and drugs to treat hypertension and renal disease. The inspection report shows a half-dozen residents weren't getting all of their drugs; one resident missed 163 doses of various medications in a three-month period. Instead of writing it up as a deficiency in pharmacy services, as the state had done two years earlier after finding a dozen Glendale residents hadn't received their prescriptions, inspectors concluded the home had failed to "give each resident care and services to get or keep the highest quality of life possible."
All told, the state has issued 14 citations to Glendale Care Center since June of last year. No fines or other punishments have been levied.
Legislators last year considered a bill that would have made it tougher to sue nursing homes. They expect to do the same in the upcoming session that begins January 10.
The bill blocked last year would have capped attorneys' fees and raised the standard from "negligence" to "gross negligence" before plaintiffs could prevail. Lawmakers say they're not sure what will be in this year's proposal, but Senator Carolyn Allen, chairwoman of the Senate Health Committee, says she favors limits on nursing home lawsuits. She says she sees too many advertisements from lawyers in search of clients. "They're trolling," she says. "It's kind of disgraceful."
However, Arizona lags well behind other states in lawsuits and litigation costs, according to the industry itself. A survey commissioned by the American Health Care Association, which represents nursing homes, shows that Arizona had seven claims per 1,000 occupied beds in 2003; the nationwide average was 15.3. Litigation costs, including monies paid to plaintiffs and legal fees, for each occupied bed in Arizona, were $710; the national average was $2,290. The cost per claim last year was $100,000 in Arizona, substantially less than the national average of $149,000.
Allen says she sees a linkage between tort reform and the regulatory system: If lawsuits aren't a deterrent to bad care, government regulators should be. She says she'll bring trial lawyers, nursing home representatives and the Department of Health Services to the table before deciding what to do. "I'm still in my learning curve," Allen says. "If we need to have more inspectors, maybe we ought to look at that."
In Florida, legislators three years ago capped attorneys' fees in nursing home litigation, limited punitive damages and reduced the statute of limitations for filing lawsuits. At the same time, lawmakers enacted minimum staffing levels and required nursing homes to adopt risk management programs to prevent poor care. Since then, the number of lawsuits has plummeted and the quality of care has improved, according to federal inspection records.
Other states have bigger hammers and more tools than Arizona, where the maximum fine is $500.
The state of Washington bypasses the federal government, issuing virtually all fines under state law. The maximum penalty is $3,000. When Washington regulators find serious violations, they immediately ban homes from accepting new residents until problems are fixed. It happens between 15 and 20 times a year. "That generally gets their attention right off the bat," says Linda Ronco, chief enforcement officer with the Washington Department of Social and Health Services.
Lisa Wynn, deputy assistant director for the Arizona Department of Health Services' licensing division, says state law doesn't give her staff the power to administratively ban nursing home admissions in Arizona. "We have the authority to do something like a temporary restraining order, but it's not something we regularly do," she says.
Arizona law does allow the state to appoint temporary managers to protect residents, a power that regulators can't recall ever using. "Most of the time, if the [nursing home] owner believes that part of the problem is with the administration, they will replace the administrator, so it's nothing we have to suggest," says Catherine Corbin, who worked as a nursing home administrator until DHS hired her nine months ago as a program manager to supervise inspectors. "I've not seen an instance where an administrator was poor and the problem was due to an administrator and the administrator stayed very long at all."
Washington doesn't wait for nursing home owners to find better management. Unlike Arizona regulators, Washington appoints temporary management to oversee operations in the worst cases. The state rarely takes that step, Ronco says, but has done so once or twice in some years. It can be expensive. Washington has spent as much as $675,000 running a single nursing home. Some of the money comes from fines levied against nursing homes.
Steve Garcia, a California attorney who started suing Arizona nursing homes about two years ago, says deterrents are the key to stopping bad care, and that can happen in two ways. One is through lawsuits, he says. "The other is to really do the right thing and really enforce, and it's not happening," he says.
Wynn agrees lawsuits are one way to convince nursing homes to shape up. She points out that plaintiffs' attorneys can use state reports as ammunition, even if no fines were issued.
But Toby Edelman, a lawyer with the Center for Medicare Advocacy in Washington, D.C., says litigation and regulation are two different things.
"The regulatory system is supposed to prevent bad things from happening," she points out. "Waiting until bad things happen, then suing in court isn't the answer.
"By then, you're dead."
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