Chicago Trial Attorney Blog : Chicago Trial Lawyer & Attorney : Philip J. Berenz Law Firm : Business Litigation, Personal Injury

About a week ago, sweeping reform was passed by both houses in the Illinois Legislature which will help ensure better patient care and safety of some of the most vulnerable people in our society. Senate Bill 326 as originally introduced was to amend the Older Adult Services Act and in provisions concerning the development of a plan to restructure the State's service delivery system for older adults, provides that the Department on Aging and the Departments of Public Health and Healthcare and Family Services shall develop the plan no later than September 30, 2010. The bill was introduced to in order that such a plan shall protect the rights of all older Illinoisans to services based on their health circumstances and functioning level, regardless of whether they receive their care in their homes, in a community setting, or in a residential facility. 

According to one article found here and AARP Senior Manager for Advocacy, Nancy Nelson, "This legislation provides sweeping reforms that will radically improve the quality of care and safety for nursing home residents in Illinois[.]"

Among other improvements, the bill would require higher standards in admitting patients with serious mental illness and to segregate dangerous residents, increase staffing levels and ensuring stronger regulation, generally, of nursing homes.

You must be extremely vigilant of your loved ones in these facilities. Review the Centers for Medicare and Medicaid Services listings of nursing homes here and check to see if your loved one is in a poor-performing facility and keep a vigilant eye on the care and treatment. If you believe your loved one has been abused or neglected, please do not hesitate to contact us for a confidential, free initial consultation on whether you should file a claim.

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A colleague of mine, friend and great attorney in Wisconsin, Jonathan Groth, noted the signs of an attorney who listens and cares on his blog here when he said:

I just finished a jury trial in Milwaukee County. During the trial preparation my client and I were talking about how long we’ve known each other. I was the attorney that answered the phone when he called in the very first time soon after the collision. He didn’t talk with a paralegal, 'intake specialist' or secretary. I worked with him since, literally, day one.

Jon went on to note something that is absolutely paramount when choosing a lawyer: 

This kind of service is important to think about when you search/interview for your attorney. Hiring an attorney is a very personal matter. Availability (email, cell phone etc) and personality are extremely important to make sure your attorney will be with you for the long haul. By this I mean potentially to trial. Even though the vast majority of my clients’ cases settle before filing a lawsuit and before trial I think it helps them to know that their attorney will be willing and has the experience to fight at trial.

Like Jon Groth does in Wisconsin, I do in Illinois: you call, I answer the phone--24/7/365. Send an e-mail--you'll get a response. If I don't answer immediately, I either have 3 other calls coming in or am in front of a Judge or in a deposition and I guarantee you will receive a return call that day or evening. Your issues matter. Make sure your attorney answers his or her phone--and listens.

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According to an article published January 23, 2010 here, authorities in both Illinois and Indiana are investigating numerous nursing homes for patient safety problems. According to the article, an Indiana nursing home named Northlake Nursing and Rehabilitation Center run by a for-profit company may avoid likely closure. The primary investor of the nursing home is nursing home operator Eric Rothner and

Many of Rothner's nursing homes have suffered quality and patient safety problems and have been investigated by authorities in Indiana and Illinois.

Also according to the article, Northlake was "red-flagged" for a "Special Focus Facility watchlist by the Centers for Medicare and Medicaid Services. . . and it was noted that the "home is ranked by state and federal agencies as among the worst in the state."

Review the Centers for Medicare and Medicaid Services listings of nursing homes here and check to see if your loved one is in one of these poor-performing facilities and keep a vigilant eye on the care and treatment. If you believe your loved one has been abused or neglected, please do not hesitate to contact us for a confidential, free initial consultation on whether you should file a claim.

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After an auto or other accident (auto, malpractice, slip and fall--or any incident such as a breach of contract, sexual harassment incident, assault and battery, nursing home negligence and abuse or any incident you can possibly imagine), insurance companies will most likely be the first to contact you. Next, will be other individuals or entities--all trying to investigate and obtain information to build a defense against any potential claim you may have.

Whether you should talk to the insurance company (or any other person or entity) is basically a judgment call on your part; however, you should simply consult with an attorney first and ask the insurance company or other investigator that your attorney be present on a teleconference call to protect your rights. You generally have a duty to cooperate with your own insurance company under your policy.

And if another party's insurance company contacts you, a witness or other investigator, you are generally not required to talk to at all--and should not without an attorney present. A third party's insurance company or other investigator will most likely take down notes, or worse, record the conversation and then try to build a defense in your case or use every single word you say against you 6 months, 1 year, 2 years later in your case. In addition, defendant's insurance companies will try to "push" low settlement offers--sometimes $500.00 or $1,000.00 when your medical bills could quickly escalate over those amounts after an accident.

As for witnesses or other investigators, you should absolutely consult with an attorney first. The attorney should be involved to take a witness statement if possible for preservation of thoughts and observations while they are fresh in everyone's minds. Again, such statements can greatly impact your case and you should get all contact information from a witness immediately at the scene of an accident--the more telephone numbers, the better!

If you are unsure of who to speak with, simply pick up the phone and call us at 312-375-6524 (24/7/365--and we really mean that!) for two minutes. We can help and those two minutes could impact your case significantly. 

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PASSION - INTEGRITY - TRUST - RESULTS

Taking a personal injury matter where a man, a woman or a child has been injured (slightly or significantly) requires, first and foremost, passion and empathy. If a lawyer cannot truly understand the suffering (again, small or significant) that another human being is enduring, the lawyer cannot demonstrate or exhibit to every person, insurance company and, ultimately, the jury how that suffering has affected a person's life.

The same holds true when a person or company is cheated out of money. When money owed is not paid. When a person or a company is wrongfully sued and must be zealously defended. Money cheated, money owed and wrongful or frivolous lawsuits cause suffering in a person's life as well. People can't sleep at night. People worry. They cannot focus on their jobs, their family, life in general. People lose their homes because bills aren't getting paid. Credit is ruined. Family arguments erupt.

A person's life in personal injury situations is even more dramatically affected when even a hurt back or a hurt neck makes it next to impossible to sit at a desk all day long at work or perform manual labor--whichever life calling a person follows. Sometimes "calling off" from the pain results in a lost job and a downward spiral of a lost home, lost relationships, lost life. The things you used to enjoy you can enjoy no longer. It wasn't your fault.

Your lawyer needs to truly understand all of these aspects of how a personal injury matter or business dispute has affected your life. Aggressive and zealous representation and empathy are an absolute must. An attentive ear--listening to you--is the only way a lawyer can fully comprehend the situation. Phil Berenz listens.

Integrity is doing the "right thing when nobody is looking." Your lawyer must handle every aspect, every conversation of your matter with the utmost integrity-when you are not on the phone and when you are not present. Trust must be unequivocally paramount.

And, finally, while a lawyer can never guarantee a particular outcome in any matter, the passion, integrity and trust will usually (not always) end in positive, productive results.

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A recent report questions whether employee reports of patient abuse in a nursing home went ignored. Read the full article here. An individual was indicted last month on four counts of aggravated sexual abuse of nursing home patients.

Two employees of the nursing home reported the abuse to their supervisor and the Board of Nursing is now investigating whether the reports went unanswered.

Monitor your loved ones closely. If you notice any bruising, withdrawal, a lack of willingness to communicate with you or unusual behavior, report the issue to the administrator of the nursing home but a call to the local police department may be in order as well. Take action. Call us to determine if a civil lawsuit should be filed.

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A recent article notes that a top state prosecutor is supporting the placement of cameras in nursing homes residents' rooms to protect them. Read the full article here. While residents would obviously have the right to object for privacy matters, the idea seems like one that would add another level of security to our most vulnerable segment in society. The article also notes from Wes Bledsoe, founder of "A Perfect Cause" whose mission is "TO END NEEDLESS SUFFERING AND PREVENTABLE DEATHS, WHILE PROTECTING THE RIGHTS OF CITIZENS FROM CORPORATE GREED AND NEGLIGENCE" (visit www.aperfectcause.org), the following profound statement:

The system is broken beyond all belie[f]. Your loved ones are suffering as a result ...

Bledsoe's grandmother died on her 86th birthday in 2000 as a result of the negligent care she received at an Oklahoma City nursing home and hence his founding of A Perfect Cause. The fight must continue against such negligence. If you feel your loved one has needlessly suffered as a result of nursing home abuse or neglect, contact us immediately to review the situation. We usually work on a contingent basis if we believe you have a claim--that is, if there is no recovery, there is no attorney fee due.

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Yet another bill has been introduced to try to cap non-economic and punitive damages when nursing home residents and their families attempt to hold nursing homes accountable for abuse and neglect. Read the full article here. The article reiterates what the Centers for Medicare and Medicaid has found in the quality of care in this nation's nursing homes and summarizes the outrage that should be present over such a bill:

Clearly, there are some serious deficiencies in the quality of care offered by some of our nursing homes that need to be addressed. Why, then, would we want to severely limit one of the only means of recourse for families who find that their loved ones have been neglected and/or abused? That's what this legislation would do. It would make it harder for nursing homes to be held accountable for abuse or neglect.

The only means to make a nursing home accountable is to make them pay for their mistakes so that, in the future, maybe they won't make the same mistake twice if they know it will continually cost them. It is the only incentive to ensure your loved ones are properly cared for--every day. Without the threat of punitive damages, in particular, nursing home management will calculate the risk of reducing staff to lower levels, keeping records and doctor's orders with less caution and having an attitude of "this is just a business" even more. Make sure such bills do not become law. Call your State Representatives to oppose any such measures. Anything else will only contribute to the notion that the value of the lives of the elderly--and others who must live in nursing homes--are worthless. In this great country, we simply cannot allow that to happen. 

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An Itasca-area nursing home called The Arbor of Itasca has been sued after an 89-year-old woman, who suffered from dementia, was found frozen to death in the nursing home courtyard. Read the full article here. According to the coroner, the woman was outside for at least 90 minutes. Her family noted that she wasn't even able to leave her bed without assistance and doesn't understand how staff allowed her to slip out unnoticed. Striking to the very heart of the matter, one of the woman's daughters stated simply:

This just can't be allowed to happen to anybody. Nobody should have to die like that.

Under the Illinois Nursing Home Care Act, a facility cannot abuse or neglect a resident. See 210 ILCS 45/2-107. "Neglect" means a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident's physical or mental condition. See 210 ILCS 45/1-117. "Abuse" means any physical or mental injury or sexual assault inflicted on a resident other than that by accidental means in a facility. See 210 ILCS 45/1-103. Violation of the act can result in damages, including attorney's fees, being awarded. See 210 ILCS 45/3-602. Know the facility that you check your loved ones into and investigate, investigate, investigate before entrusting your family members to any facility.

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A recent article pointed out life inside one of Illinois' "one-star" nursing homes. Notably, when inspectors arrived they found:

The lobby smelled of urine. In one room, they found a 97-year-old woman, lying in her own waste. She had severe bruises on her arm, foot and both legs that the staff could not immediately explain. Another resident had a bed sore larger than a golf ball and dripping blood.

It was also noted that an obese man suffocated after getting stuck between a mattress and side rails and the State of Illinois fined the facility $50,000 for the death--noted as one of of the largest nursing home penalties in the state last year.

In my earlier posts, I stress often that when placing a loved one in any nursing facility, do your due diligence. Check the ratings system. Check the Illinois Department of Public Health. Ask questions of the staff and visit the facility at various times. There is no reason that any resident should ever suffer through these issues.
 

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The Centers for Medicare & Medicaid Services ("CMS") has just launched "Nursing Home Compare" which provides quality ratings for each of the nation’s 16,000 Medicare and/or Medicaid-certified nursing homes. The rating system is a five-star system based on health inspection results, quality measures, and staffing levels and an overall rating is also provided. Visit the rating system here. CMS suggests using these ratings along with other information to get a true picture about any particular nursing home. 

The nursing home industry may be concerned about the system. According to one article, the rating results are as follows:

About 22 percent of the nation's nearly 16,000 nursing homes received the federal government's lowest rating in a new five-star system unveiled Thursday, while 12 percent received the highest ranking possible.

792 nursing homes in Illinois have been rated here. Families should take into account this information before sending a loved one to any Illinois facility but also review other sources of information to determine the level of care and attention loved ones should receive.

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Some Illinois County coroners would like to see a new law requiring nursing homes to report every death for investigation into potential abuse or neglect. For the full article, click here. According to the article, the Illinois State Department of Public Health conducted a pilot project in 10 Illinois counties over the course of a year to determine whether a policy to investigate nursing home deaths by a coroner should be applied to all 102 counties in the State. However, the study has not resulted in any anticipated lobbying for new legislation. Notably though the study showed:

an 11 percent increase in nursing-home complaints filed with the state by coroners and all other sources.

Some counties have noted that such a law would require more funding, including Cook County, in which Chicago is located. The article pointed out that in large counties such as Cook, coroners and medical examiners look into nursing home deaths only after they receive complaints from family members or if criminal activity is suspected. This is where Plaintiff's lawyers step in--if nobody else has the funding or energy or responsibility for uncovering the truth of how nursing home residents are treated, a lawyer will.

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Sepsis is infection of the blood and according to at least one source, it is "a condition in which your body is fighting a severe infection . . . [that] can develop either as a result of your body's own defense system or from toxic substances made by the infecting agent (such as a bacteria, virus, or fungus)." Elderly individuals are more susceptible to acquiring sepsis. According to at least one source, many different microbes can cause sepsis and "[i]nfections in the lungs (pneumonia), bladder and kidneys (urinary tract infections), skin (cellulitis), abdomen (such as appendicitis), and other organs (such as meningitis) can spread and lead to sepsis." In addition, infections that develop after surgery can also lead to sepsis.

In the nursing home setting, it is important to recognize any symptoms of sepsis in your loved ones as noted in at least one source: chills and severe shaking, heart beating very fast and rapid breathing, confusion, disorientation, and agitation as well as dizziness and decreased urination, a rash on the skin (reddish discoloration or small dark red dots throughout the body) and perhaps pain in the joints at the wrists, elbows, back, hips, knees, and ankles. Some elderly individuals with certain diseases are more at risk than others. If you notice any of these symptoms, have your loved ones examined by a doctor immediately. 
 

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Desperate to learn the truth, the family of an 84-year-old resident of a Kentucky nursing home hid a video camera in the resident's room after discovering dozens of bruises all over her body and not receiving satisfactory answers from the staff. Read the full article here.

The videotape captured the staff "pulling the resident out of bed by her wrists and neck," and "roughly moving the resident from side to side," the investigation showed.

Family should consult with a lawyer before attempting a similar situation--placing a video camera in a nursing home. However, demanding staff answer questions about noticeable bruises, injuries and cleanliness is appropriate--and a demand that an independent doctor immediately evaluate your loved one is also in order under such circumstances. Residents have rights to proper care and treatment. Ensure your loved ones are being properly cared for.

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As one recent article points out, the holiday season is the time of year nursing home residents receive the most visits and loved ones should take careful note of any signs of abuse or neglect--especially bed sores. Bed sores are preventable, are not normal, and command immediate attention. If your loved one seems "distant" or has any bruising, scars, cuts or appears unbathed and dirty, take immediate action, ask questions and demand answers. Ask them how the staff has been treating them, if they have suffered any falls--even if they feel the falls may be their own fault--if they are receiving their medicine (and on time and at the right "intervals") and simply if they are happy. The law grants nursing home residents certain rights--particularly rights commanding proper care, free from abuse and neglect.

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An Arizona nursing home was found with more than two dozen violations and has agreed to pay the State $17,500 in civil penalties as a result notes the Arizona Daily Star. According to the article, among the violations noted, including a failure to protect its elderly residents from sexual abuse, state inspectors found that the home also failed to timely note that a resident suffered a seizure, fell and was unconscious--and was later found to have suffered intracranial bleeding from the fall. In addition, another resident who fell was merely given Tylenol for ankle pain when, in fact, after nearly a week, the center determined that she had actually fractured her ankle. Residents of nursing homes have rights to receive proper care. A simple phone call to a resident's primary care provider would prevent needless suffering. Make sure your loved ones are getting the attention they deserve--and with dignity and respect.

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At trial time, Defendants may make a motion before the Court to exclude gruesome photographs of injuries. However, simply because the photograph(s) may be gruesome and possibly cause prejudice in the minds of the jury is no reason to exclude the photograph(s). See e.g. Burnett v. Caho, 7 Ill.App.3d 266, 272 (3rd Dist. 1972). Admissibility is within the discretion of the trial judge and it is common practice to display personal injuries to the jury "even though there is no controversy as to the existence, nature and extent thereof." See id. For example, it has even been held to include the right to show an injured eyeball that has been removed and it is not error to permit the plaintiff to display his injuries to the jury and to testify briefly while so doing. See id.

Generally speaking, such exhibits are admissible if the probative value of the exhibits is not outweighed by their inflammatory effect. See Drews v. Gobel Freight Lines, Inc., 144 Ill.2d 84, 99 (Ill. 1991). In Drews, the plaintiff introduced photographs of a decedent taken at a morgue to support Plaintiff's claim for decedent's pain and suffering. One of the photographs even showed multiple lacerations to the decedent's face and throat, and the other photograph showed a gaping wound and burns to a knee. Similar to the Burnett case, the Illinois Supreme Court in Drews held that in spite of the fact that a photo may be gruesome or inflammatory, the trial judge may admit it for the probative value in assisting the jury's determination of the extent of pain and suffering. See id.

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As noted in a recent N.Y. Times Article, the Department of Health and Human Services ("HHS") noted that over 90% of U.S. nursing homes were cited for federal health and safety standards violations last year--and notably, for-profit homes had more problems. The report by HHS noted issues with pressure sores (also known as bed sores or decubitus ulcers), medication errors, and abuse and neglect among others and inspectors received 37,150 complaints last year. The article pointed out that HHS "substantiated 39 percent" of the complaints. As our society ages, nursing homes will become more populated; but, hopefully, this trend will cease if nursing homes are held accountable for their actions.

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The Centers for Medicare and Medicaid Services ("CMS") provides extremely useful information about Medicare and Medicaid nursing home providers with links to applicable laws, regulations and compliance information. You can view the main site here: www.cms.hhs.gov/CertificationandComplianc/12_NHs.asp. Most importantly, however, CMS provides a list of what is known as "special focus facilities" or a list of nursing homes that have a record of poor survey (inspection) results. These surveys are unannounced and are an important tool in evaluating the performance and compliance of nursing homes. In fact, you can view the nursing homes in your area and even compare them here: http://www.medicare.gov/NHCompare.

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Extensive information on Illinois nursing homes such as:

• Who regulates nursing homes;
• A list of Illinois nursing homes;
• How to select a nursing home; and
• Reports on nursing home violations

can be found at the Illinois Department of Public Health's web site here: http://www.idph.state.il.us/webapp/LTCApp/ltc.jsp. When making a decision on where to send a loved one, it may be prudent to peruse this site for insightful information on the nursing homes in your area.

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