A $6,000-per-day penalty imposed by the Centers for Medicare and Medicaid Services on an Illinois nursing home was upheld by the U.S. Court of Appeals for the Seventh Circuit recently. The fine stemmed from a finding that the nursing home put patients in immediate jeopardy when it failed to protect them from nursing home abuse and theft. The CMS investigation also revealed the facility failed to timely report or thoroughly investigate allegations of abuse inflicted on residents, and didn’t implement policies on abuse, neglect or property theft.
The appellate court ruled there was substantial evidence to support CMS’s conclusions that formed the basis for the penalty. It stemmed from a site visit by investigators with the state health department back in 2014.
There was an allegation at the time that a resident and his wife suffered emotional abuse when a female staffer approached the male resident, grabbed his face in her hands, kissed him on both cheeks and then the forehead before telling him she had always loved him. Administrators did launch an investigation into the incident, but only insofar as they questioned staff and other residents. However, they did not formally interview the resident or his wife.
A nurse later came forward and said she had kissed the man on the forehead and told him he was doing a good job. While CMS did concede that particular allegation was “equivocal,” the investigation into what happened failed to meet basic standards.
In a separate incident, a resident’s rings were reportedly stolen while the resident was in hospice care. The facility failed to immediately launch an investigation, and this delay likely hindered their ability to find out who the culprit was.
Court records indicate there was also an incident wherein a staff member, bathing a patient who was in the latter stages of dementia, cursed at him. That same staffer also reportedly shoved the same patient while attempting to put him back into bed. The force of that shove nearly knocked the 92-year-old man out of the bed. Despite this incident being reported to administrators, the supervisor failed to initiate a proper investigation. The supervisor later said the misconduct report, which was filed by another staffer, was likely the result of a long-running feud between the colleagues. The accused staffer was ultimately fired. Investigators said an allegation of verbal and physical abuse of a frail elderly dementia patient – even if it later proved untrue (which wasn’t the case in this situation) warranted immediately removing the staffer from duty pending the outcome of the investigation. This failure to do so in turn put this resident – and potentially others – at immediate risk of harm.
Such action by CMS is one means available for accountability when nursing home abuse or neglect occurs – even if it may not be actionable in a lawsuit.
For instance, in these cases, what often needs to be shown is some element of physical injury or harm. This is usually necessary to prove damages. Even if a facility is negligent in providing care, little can be done in terms of legal action unless there is some evidence plaintiff suffered damages as a result. There may be some exceptions. For example, in the case of theft, F.S. 825.103 details criminal action for exploitation of an elderly person or disabled adult. It may also be grounds to pursue a civil claim.
It’s important to discuss these concerns with an experienced nursing home abuse attorney before deciding whether to pursue legal action.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Rosewood Care Center of Swansea v. Price, Aug. 24, 2017, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Nursing Home Death of Alzheimer’s Patient Spurs Negligence Lawsuit, July 30, 2017, Nursing Home Abuse Lawyer Blog