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Medicare Ratings to Address Chronic Understaffing in Nursing Homes

Many nursing homes are so understaffed that they may be inherently endangering their patients.

It’s become such a chronic problem that Medicare is making changes to its five-star rating program for nursing homes.

The Obama administration announced plans to expand and strengthen Medicare’s Five Star Quality Rating System (also known as Nursing Home Compare).

Staffing levels factor into a nursing home’s overall rating.

However, that data is self-reported, and impossible to verify. Hidden cameras have revealed a rash of nursing home neglect cases in which records were falsified.

Damore Law Group Nursing Home Compare Medicare Ratings to Address Chronic Understaffing in Nursing Homes

Nursing Home Compare is an easy way to search the records and rankings of over 15,000 nursing homes participating in Medicare or Medicaid.

 

Beginning in 2015, Nursing Home Compare will use payroll records to calculate accurate staffing levels.

It’s is one of several proposed changes aimed at improving health outcomes for patients.

Nursing home officials say inadequate staffing is a problem because inadequate government subsidies make it very difficult to attract, compensate, and retain good workers.

Although this change could potentially force some nursing homes to improve the staff-to-patient ratio, there are almost no federal guidelines for adequate staffing. And individual state rules vary: Washington has no law for staff to patient ratio, Oregon mandates an assigned CNA per patient, and “no less than 1 RN hour per resident per week.” California calls for three hours of care per patient, per day.

Updating Medicare’s rating program may help identify the culprits, but it doesn’t solve the problem of the chronic understaffing that too often leads to neglect in nursing homes.

 

Three Reasons Construction Workers Get Hurt

Thanks to the labor movement and Occupational Health Safety Administration (OSHA), on-the-job deaths in the U.S. are down 67 percent since 1970. However, there are still dangers, specifically in certain industries.

One in five worker deaths in 2013 occurred in the construction industry.

What makes the construction industry so risky for workers?

1. Heights

796 deaths were reported in the construction industry last year. Of those, nearly 37 percent were caused by falls from scaffolds and other elevations.

Another 10 percent were the result of being struck by an object, such as falling debris, materials, or heavy equipment.

Most construction sites are in a constant state of flux: heavy equipment, machines, and scaffolds are all moving around. Add multiple levels, and you multiply the risk of injury.

Construction Image courtesy of tiverylucky at FreeDigitalPhotos 199x300 Three Reasons Construction Workers Get Hurt
2. Long, Intense Hours

Construction workers often do repetitive tasks for hours at a time. They must continuously communicate with other crew members, and are usually on a tight deadline.

This pattern leads to both cognitive and muscular fatigue.

Research conducted by the Center for Construction Research and Training shows these conditions contribute to unsafe work places.

3. Safety Standards Are Sometimes Violated

Construction worksites are organizationally complex. There are usually multiple employers, and both the general contractor and sub-contractors have a legal obligation to keep the worksite reasonably safe.

Employers also have a legal duty to warn workers of the dangers at the site, and properly train their workers to perform their jobs safely.

While most employers want to protect their employees, others continue to take shortcuts. This can expose them to serious dangers even after receiving citations from OSHA for known hazards.

 

Image courtesy of tiverylucky at FreeDigitalPhotos.net.

Allstate learns a $22 million-dollar lesson: the story of a bad faith lawsuit

This week, Allstate Insurance settled a bad faith claim for 22 million dollars.

The settlement, the largest bad-faith settlement in Pennsylvania history, is important because Allstate may finally be forced to re-think the notorious practices of denying legitimate injury claims.

A car crash results in catastrophic injury

Patrick Hennessy was a passenger in Ryan Caruso’s car when Caruso rear-ended another vehicle, and then stalled out in the road.

Mr. Hennessy was pushing Caruso’s car to the side of the road when he was hit by another vehicle, driven by Shawn Robertson, Jr.

The second crash crushed Mr. Hennessy. After months of intensive treatment, the young man’s leg had to be amputated above the knee.

Robertson, the driver of the car that hit Hennessy, was uninsured. However, since Caruso’s rear-end collision had started the chain of events that led to Hennessy’s injury, attorneys argued that his insurance company should cover the damages.

Allstate makes a big mistake

Mr. Caruso had $250,000 worth of coverage from his insurance company, Allstate.

He expected—very reasonably—that Hennessy’s medical bills alone were significantly more than that, so his insurance company would turn over the policy maximum $250,000 and be done with it.

Allstate refused to pay the claim, despite several opportunities.

By refusing to pay on the insurance policy, Allstate put its insured on the hook for Mr. Hennessy’s injury.

That is called “bad faith.”

When you buy insurance, you enter into a contract with the insurance company. You pay them, and they are required to:

  • Fully and promptly investigate your claim
  • Consider all of the circumstances supporting your claim
  • Respond to all requests for information or communication in a timely matter

Bad faith” means that the insurance company is failing to uphold its end of that contract. Read more about bad faith claims.

Last year, Mr. Hennessy’s case against Caruso went to trial. A Philadelphia jury issued a $19,145,000 verdict.

Mr. Caruso assigned his rights for a bad faith claim against Allstate to Mr. Hennessy and his attorneys, which allowed them to go after Allstate for the verdict above the policy limits of $250,000.

This week, Allstate settled that claim for $22 million.

That’s 88 times the amount of the original claim, which it should have paid five years ago.

“It was a protracted but ultimately successful battle between a young man with a catastrophic injury and the largest insurance company in America”

- Mr. Hennessey’s lawyer, Matt Casey

Allstate, America’s biggest insurance company, is well-known for their method of processing insurance claims: delay, deny, defend.

First, it denies the claim for insurance benefits. Then, it delays paying out as long as possible. When the injured person is desperate, Allstate makes the lowest possible offer. If the injured doesn’t accept that offer and seeks the help of an attorney, Allstate defends its case as long as possible. It forces seriously injured people to jump through hoops just to get their rightful benefits.

We hope that bad faith cases like this will force Allstate to stop this abhorrent practice.

 

Soccer Players file a Class Action Lawsuit against FIFA for Brain Injuries

A group of parents and soccer players has filed a class-action lawsuit in United States District Court in California against the Fèdèration Internationale de Football Association (FIFA), as well as other U.S.-based soccer associations.

The suit alleges that FIFA, and a few American soccer organizations, have been negligent in developing policies to evaluate, manage, and treat head injuries.

FIFA is responsible for the “Laws of the Game” followed by almost every soccer group.

“… FIFA has failed to enact the policies and rules needed to protect soccer players… We believe it is imperative we force these organizations to put a stop to hazardous practices that put players at unnecessary risk.” – Plaintiffs’ attorney Steve W. Berman, Hagens Berman Sobol Shapiro LLP.

The plaintiffs in the lawsuit are not seeking monetary damages. Instead, they request changes to FIFA rules, including:

  • Limiting “headers” for kids under age 17;
  • Changing the substitution rules so a player can come off the field after sustaining a head bump;
  • Providing medical testing for soccer players who competed as far back as 2002, and are now feeling the effects of concussions; and
  • Instituting a procedure that would involve a medical professional to determine if a player should be permitted to continue playing.

Evidently, FIFA’s brain injury guidelines suggest that players are responsible for self-diagnosis. Although FIFA posts guidelines about preventing and treating concussions, it does not have rules directing their treatment.

Damore Law Group Brain Injury Soccer Lawsuit 300x198 Soccer Players file a Class Action Lawsuit against FIFA for Brain Injuries

A class action lawsuit alleges that FIFA has failed to create policies that diagnose and treat brain injuries in soccer players.

Traumatic brain injuries (TBI) typically result from a violent blow or jolt to the head. Mild TBI may cause temporary brain dysfunction, while more serious TBI can result in physical damage to the brain, such as bruising, bleeding, and torn tissue.

According to the plaintiffs’ court documents, nearly 50,000 high school soccer players suffered head injuries in 2010.

That’s more head injuries in soccer than in baseball, basketball, softball, and wrestling—combined.

The defendants have 60 days to answer the complaint, and at that time a judge will determine whether or not the case will proceed.

 

 

Image courtesy of Paul Gooddy at FreeDigitalPhotos.net

How a doctor + a camera = $190 million dollars – Part 2

Part 2 of a 2-part series that originally appeared in the Legal Examiner. 

The real cost of a lawsuit

Sex abuse cases are very difficult for victims – and for the people helping them.

They’re second only to death claims as the most difficult cases for a law firm to take on.

Obviously, the main concern is the victims. But don’t think this is easy for their legal team. For each case, attorneys and paralegals spend hours and hours over many months to gather the (legally required) information. They read thousands of pages of medical records, prepare photographs and video exhibits, contact clients and defense counsel, interview witnesses, and take recorded statements.

In this case, one firm alone interviewed about 2,000 former patients. There are 8,000 involved in the suit. The law firms will now spend years sorting this out.

It’s a second-hand experience of a very traumatic event, over and over and over.

Aside from the toll of the work, it’s hugely expensive to mount even one lawsuit.

It’s often years before the firm gets paid: they front the costs of mounting a lawsuit (which are significant), and pay the lawyers, the paralegals, secretaries, administrators in the meantime – in addition to the basic costs to keep an office going.

Yes, the law firms will be paid for their time and expenses. If they weren’t, who would help these victims?

What happens to the $190 million?

The law firms will create a damages matrix, which is as complex as it sounds.

Each plaintiff will be interviewed individually, and have her medical records examined by lawyers and psychologists.

Each will be placed into one of four categories, depending on the trauma level. The funds will be distributed accordingly, for the estimated future mental and physical care, based on the trauma level.

The judge approved this settlement and distribution plan. A second hearing is set for October 2, and will address legal fees and expenses of any settlement.

This may sound like a cold, calculating way to resolve individual traumas. And it is – by necessity.

There is no reparation here: no one can undo these violations, or repair the damage to the victims and to the community.

Money is the only common language we have with corporations. No criminal charges will be filed against Johns Hopkins. Its corporate press releases about “regret” and “moving forward” are nice, but they don’t help the thousands of people affected.

Monetary compensation is the only tool we have to get justice. And using it is the best way we have to ensure that this won’t happen again.

 

Part 2 of a 2-part series that originally appeared in the Legal Examiner. 

 

 

 

How a doctor + a camera = $190 million dollars – Part 1

This post originally appeared in the Legal Examiner. 

The Background

Dr. Nikita Levy had been a gynecologist for Johns Hopkins for 25 years when one of his colleagues noticed something strange about the pen he wore around his neck.

It was a camera.

Dr. Levy had been secretly filming his patients while he administered pelvic exams, performed pap smears, and examined women in their most vulnerable states. Police found more than 1200 videos at his home and office that he saved from a variety of small recording devices he’d stashed around his office.

More disturbing are the reports that Dr. Levy asked women to fully disrobe for routine exams, and that he reportedly examined them without gloves. Nurses were often not present during the exams, violating a longstanding recommendation of the American Medical Association.

The Lawsuit

Last year, a class action lawsuit was filed on behalf of the 8,000 women the late Dr. Levy (he killed himself after being exposed last year) is believed to have violated. Among them are at least 60 children.

Attorneys for Johns Hopkins offered to settle the case, rather than proceeding to trial, for a total of $190 million dollars.

Abuse by a doctor = medical malpractice

This case is unusual: even though it’s a class action – meaning the lawyers work on behalf of all of the victims together – it’s a medical malpractice case.

Sexual abuse by a doctor is medical malpractice. Some people object to medical malpractice lawsuits because they feel that a doctor shouldn’t be sued over a “mistake.”

Sexual abuse can’t be excused as an error in judgment. It isn’t a subjective medical decision.

It’s particularly heinous because it doesn’t just injure the body: it can be extremely damaging psychologically and emotionally. It’s worse when the abuser is an authority or safety figure.

One former patient wrote that she and other victims must now live with the fact that their doctor viewed them “not through the clear eyes of a physician but through the filthy lens of a depraved pervert.” 

Widespread violations by a doctor who accesses the most personal, private aspects of women’s lives and bodies are not just damaging the victims: they’re damaging to the entire community.

This case is important because it’s about more than one very sick doctor. For health care to be effective in any way, it is absolutely imperative that the medical facilities to be safe.

Johns Hopkins was responsible for its patients’ safety, and now it must be held accountable.

 Yes, Johns Hopkins is at fault.

  1. The doctor was an employee of Johns Hopkins;
  2. While he abused thousands of women at a Johns Hopkins facility;
  3. In the presence or vicinity of other Johns Hopkins staff;
  4. For at least 8 years before anyone stopped him.

Consider, too, that Johns Hopkins and its insurer decided against a trial: it settled the claim for nearly $200 million.

Any experienced trial lawyer will tell you that a defendant does not offer a settlement of this size without any culpability.

Without a trial, the public may never know what Johns Hopkins knew about Dr. Levy, or when they knew it. But it is easy to speculate on what the hospital may want to hide – questions that would certainly come up in a trial:

  • Is it likely that Dr. Levy just decided one day, 15 years into his career, to start abusing women?
  • It’s AMA policy to have a nurse present during OB-GYN exams: does Johns Hopkins have that policy?
  • If so, not one of the dozens of nurses that must have worked with him over the years ever questioned his procedures?
  • How many other doctors or staff members knew or had suspicions about Dr. Levy?
  • Is it possible that no one ever complained about him?
  • Or how many complaints did the hospital ignore?

Hospitals have been known to hide evidence of sexual abuse by their staff because they’re more interested in protecting their reputation than protecting their patients.

Some have even kept the sex abuser employed for years after they are aware of the sexual abuse against patients.

I can’t say that’s the situation with Johns Hopkins. Since there’s no trial, they don’t have to produce their records on Dr. Levy.

Bottom line: Johns Hopkins’ lawyers and insurance adjusters calculated the risk, and the potential damage to their medical reputation if they were to go to trial; they determined that this was a fair settlement.


This post originally appeared in the Portland Legal Examiner

 

How a doctor + a camera = $190 million dollars – Part 2:  the real cost of a lawsuit, and what happens to the $190 million 

Details on the lawsuit can be found at drlevyclassaction.com 

 

Almost 90% of Elder Abuse Cases Have this in Common

Elder abuse: intentional mistreatment that causes harm, or creates a serious risk of harm to a vulnerable elder.

Experts agree that elderly women are abused at a higher rate than men. And the older the person is, the more likely she is to be abused.

Dementia also increases the risk of elder abuse. Nearly half of all people over 85 suffer from Alzheimer’s disease or dementia.

Who Are the Abusers?

A big majority—estimates run as high as 90 percent—of abusers are family members.

That’s a shockingly high percentage. Abusers, usually adult children, spouses, or partners, are more likely to have drug and/or alcohol problems, mental illnesses, or feel burdened by their care-giving responsibilities.

Signs of elder abuse are often missed because:

  • There is a lack of training on detecting this type of abuse – especially in families.
  • The elderly victim is reluctant to report the abuse for fear of retaliation, or because he doesn’t want to get the abuser in trouble.
  • The elder is not physically able to report the abuse.

Damore Law Group Elder Abuse 300x215 Almost 90% of Elder Abuse Cases Have this in CommonIt’s important to remember that elder abuse happens in private homes as well, but abuse and neglect in nursing homes and long-term care facilities is still a big problem.

One survey of certified nursing assistants found that 17% of CNAs admitted to pushing, grabbing, or shoving a nursing home resident. More than half said they had yelled at a resident, and 23% had sworn at or otherwise insulted a resident.

 

 

 

 

 

 

Image courtesy of africa at FreeDigitalPhotos.net

Construction Sites Commonplace for Injuries

Almost 6.5 million people work at over 250,000 construction sites in the U.S. on any given day, according to the Occupational Safety and Health Administration (OSHA). Because of the heavy equipment and hazardous conditions often present at construction sites, the fatal injury rate for the construction industry is well higher than the national average for all other industries.

In the U.S., OSHA sets and enforces standards concerning workplace safety and health.  Because of the increased safety standards, worker deaths in America have declined from about 38 workers per day in 1970 to 12 a day in 2012. Workplace fatalities have been reduced by more than 65 percent in the last 40 years, despite the fact that U.S. employment has nearly doubled.

Hazards Present on Construction Sites

Construction workers are exposed to a number of health hazards on the job, depending upon the trade, job, day, and even time of the day. Some of the many health hazards present on construction sites include asbestos, solvents, noise, and manual labor resulting in accidents. Other potential hazards faced frequently by construction workers include:

  • Trench and scaffold collapse
  • Falls, especially on ladders and stairways
  • Injuries sustained while operating heavy equipment such as forklifts and cranes
  • Being struck by objects
  • Electric shock
  • Heavy loads
  • Chemical burns
  • Injuries sustained due to failure to use protective equipment
  • Repetitive motion injuries, including tendonitis and carpal tunnel syndrome
  • Blows to the head resulting in traumatic brain injury

Falls account for the greatest number of fatalities in the construction industry.

Third Party Negligence

It is not uncommon that a worker will sustain a construction site injury due to the negligence of a third party. A third party is anyone other than the worker’s employer or co-worker. In such cases, employees may be able to pursue both workers’ compensation benefits and also bring a personal injury claim for negligence against the party responsible for their injuries.

 

Four Ways that Civil and Criminal Law Differ

Civil and criminal law are two broad and separate entities of law.  While both types of law take place in the same courthouse, they have different goals. Civil law is designed to repay the victim with money. Criminal law is designed to punish a wrongdoer for engaging in an activity that society has deemed a crime, and to deter the wrongdoer from engaging in similar conduct in the future. Other differences include:

Parties

In civil law, the person or entity that initiates the lawsuit and is called the plaintiff. In criminal law, the district attorney, a government employee, initiates the lawsuit and is known as the prosecutor. In both situations, the entities that the claims are against are called defendants.

Type of Disputes

Civil cases are to resolve disputes between individuals or organizations.  A civil wrong is called a tort. In a criminal matter, an individual is prosecuted by the government for committing an act that is against the laws established by society, such as driving while under the influence of drugs or alcohol, or committing a murder.

Decision

In a civil case, the defendant is either liable or not liable. If the defendant is liable, he is generally ordered to pay compensation to the plaintiff. In a criminal case, a defendant is guilty or not guilty. If the defendant is guilty, an appropriate punishment, such as jail time or probation, is determined by the court.

Burden of Proof

The burden of proof in a criminal case is “beyond a reasonable doubt.” This means that based on the evidence presented, there can be no reasonable doubt. This is sometimes referred to as “to a moral certainty.” This high burden of proof goes along with the presumption that a defendant is innocent until proven guilty at trial.

The burden of proof in a civil trial in Oregon is a preponderance of the evidence, a much lesser burden than beyond reasonable doubt. Preponderance of the evidence means that it is more likely than not. Each fact in a civil case is determined using this standard, including the ultimate decision concerning liability. The plaintiff generally has the burden of proving his case.

Examples of criminal law include burglary, assault, battery and murder, while civil law applies in cases of negligence and legal or medical malpractice.

Distracted Driving: Multi-Tasking Is a Myth

When you’re driving, there’s an old saying that tells you to keep your eyes on the road and your hands on the wheel.

This is easier said than done.

In our fast-paced world, motorists are distracted by a wide variety of activities that take their attention away from their primary task, which should be driving. These common distractions include:

  • Daydreaming
  • Texting, emailing, or surfing the net on a smartphone
  • Talking on the phone, even by using a hands-free device
  • Eating
  • Drinking
  • Fatigue
  • Talking to passengers
  • Putting on makeup
  • Reading a map or using GPS
  • Rubbernecking (checking out something happening in the oncoming lane or on the side of the road)
  • Adjusting a radio, CD or MP3 player
  • Watching a video

According to an April 2012 report by the National Safety Council, the human brain cannot perform two tasks at the same time, and instead handles each task successively by switching from one to the other. Because the human brain is capable of rapidly juggling tasks, people are led to believe that they are doing more than one thing at the same time (multi-tasking). The reality is that we only do one thing at a time, and do not have complete control over which information the brain processes and which it filters out.

Distracted Driving Puts Everyone at Risk

The mental distraction that occurs when engaging in any activity other than driving takes a driver’s mind off the road, and puts the driver and others at risk. One alarming statistic from Distraction.gov: At any given daylight moment across America, approximately 660,000 drivers are using cell phones or manipulating electronic devices while driving, a number that has held steady since 2010.

Driving is an activity that requires complete attention. Do not put yourself or others at risk by trying to accomplish other tasks when your priority should be reaching your destination safely.