Tuesday, August 12, 2014

Photos are required in Bedsore cases

As uncomfortable as it is, you simply must take photos of the bedsore or other signs of elder abuse, neglect, and malpractice.

No one wants to roll their grandmother or mother over and take such photos, but it is simply needed.

As they say, a "picture is worth a thousand words."

Pressure wounds, bed sores, heel sores, blisters, redness, swelling, drainage and odor are all signs that a loved one is being mistreated.

Worse yet, sacral or tailbone sores, are often infected when one is laying in their own waste.  Fecal matter is the worst offender.

This often leads to sepsis.  When one becomes septic, the blood is actually poisoned.

Early detection prevents worsening.  Early documentation prevents dishonesty.

Monday, June 11, 2012



There are annoying lawyer ads on television every waking moment. So, you may think there must be a mighty long line at the Shelby County Courthouse just to get a jury trial.

The most recent report from Shelby Circuit Court indicates quite the opposite.  It indicates a total of only thirteen jury trials were tried in the Summer/Fall 2011 Jury Term among the eight divisions.

The other myth is that juries are giving out money like water. “Jackpot justice” is what it is often called. Of those thirteen trials, seven were either “defense verdicts” or “mistrials.” That means that the injured plaintiffs got nothing.

In the remaining six that the Plaintiffs actually won, the figures are unlikely to impress you. One poor guy won his trial but got a zero verdict. Three others received just a few thousand each.  Only two were significant verdicts: $68,106.83 and $750,000.00.

To hear people’s talk of out of control juries, you would expect many millions of dollars to be thrown around like beads from so many Mardi Gras floats in the French Quarter.

The truth is that the really severe injuries that result from clear-cut liability generally get settled quietly.

The tough cases go to trial. The results indicate that.

Be aware that there is a real effort to take away your right to a jury trial or at least reduce any major award. Why? It is certainly not due to any jackpot justice. It is so that insurance companies can squeeze more premiums from policyholders while facing less exposure at court.

Jury awards, especially those for punitive damages, constitute the one thing that a company cannot budget for. None of these awards are reported to have included any punitive damages. Indeed, they are difficult to win under Tennessee law. They serve as an important deterrent against reckless corporate behavior.

Verdicts are why cars no longer explode on impact like Pintos did. They are why pool drains cannot turn little kids inside out like some used to. Juries have made our drugs safer, our cars more resilient and our healthcare among the best in the world.

In the end, if you are the victim of a reckless driver, a careless doctor or a profit-driven nursing home, you expect to be able to sue. But, if citizens do not protect this right, it may be going the way of the vinyl record. This may actually happen in our lifetime.

Monday, September 26, 2011

Article on Tennessee Nursing Home I must share

TN lawmakers give negligent nursing homes a break

Written by
Walter F. Roche Jr. | The Tennessean

When Dennis Matthews hears lobbyists and nursing home operators in Tennessee talk about the high cost of lawsuits and the need for tort reform, he can only shudder.

Matthews sued Tennessee-based Life Care Centers of America after his mother, Verdie, died from dehydration and malnutrition at one of the chain’s nursing homes in Cleveland, Tenn.

After an 11-day trial, the jury found that the nursing home was negligent and awarded the family $11.5 million, but Bradley County Judge Ginger Buchanan threw out the verdict. She granted the nursing home’s motion for a new trial, saying that the evidence did not support the amount of the jury award. Matthews eventually reached a settlement with the nursing chain for a fraction of the jury award.

“It was horrible. I hate to even think about it,” Matthews said.

A Tennessean review of laws, inspection reports and lawsuits has shown that for people such as Matthews who have lost a loved one in a Tennessee nursing home, things may be about to get worse.

Even as a large segment of the population moves into its later years of life and might require nursing home care, Tennessee is moving toward lighter regulation of nursing homes, fewer state investigations and laws that make it more difficult to bring potentially costly lawsuits against operators.

Many nursing homes in Tennessee also now require patients or their families to sign agreements waiving their rights to a trial before admission.

A measure passed earlier this year by the legislature places strict new limits on the rights of nursing home patients and their families to sue nursing homes for poor care. That law, which caps the amount a jury can award, goes into effect this week.

This comes just a couple of years after the legislature in 2009 vastly reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents. Officials said the change was needed so they could spend their time investigating more serious complaints.

Tennessee has not fared well compared with other states in some key quality measures of nursing homes. And federal officials have said the state has failed in its regulation of such homes. A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.

The new limits on lawsuits could shut down yet another avenue of complaints — the courtroom. Plaintiffs’ lawyers candidly admit that the new caps will keep many nursing home malpractice claims from ever getting to court, in part because lawyers will be less inclined to take the cases.

“By limiting the only damages a nursing home resident has, the new law has made it virtually impossible, in some cases, for attorneys to recover a reasonable amount of money for the victims and their families,” said Nashville attorney Randy Kinnard.

The tort reform bill sets a $750,000 cap on pain and suffering claims against a nursing home. A higher $1 million cap applies to limited types of cases. Caps do not apply if intentional misconduct is found. Nor is there any cap on economic damages, such as doctor and hospital bills or lost wages.

H. Lee Barfield II, an attorney who represents nursing homes and lobbied for the tort reform bill on behalf of Tennesseans for Economic Growth, said that he did not believe the new law would limit access to the court system. But he acknowledged the law would significantly reduce the amount juries can award. In one case he cited, a jury verdict of$34 million would have been limited to $2.55 million if the new law had been in place.

He stressed that support for the new tort law came from a coalition of businesses across the state, not just nursing homes.

Ranked near bottom
Tennessee nursing homes already rank near the bottom nationally in two key areas of care, according to federal data. Without the threat of lawsuits, some attorneys and advocates think, it will sink even lower.

Data compiled by the federal Centers for Medicare & Medicaid Services show Tennessee ranks fourth out of 50 from the bottom in the number of hours per patient per day provided by certified nurse assistants. It ranks seventh from the bottom in registered nurse hours per patient per day, according to the CMS data.

The latest data show Tennessee nursing homes provide an average of 0.62 hours of registered nursing care per patient per day. Assistant Health Commissioner Christy Allen said that was comparable to other states in the region. Neighboring Kentucky provides 0.8 hours, while Florida provides 0.64. The states that provide the most hours are generally lower-population states: Hawaii nursing homes average 1.36 hours, Delaware provides 1.22 hours and Alaska 1.86 hours.

According to state health officials, current law and regulations require licensed nursing personnel to provide only 0.4 hours of direct care per patient each day.

Professor John F. Schnelle of the Vanderbilt Center for Quality Aging said studies have shown that increasing the hours of nursing care provided to patients can improve quality.

But he cautioned, “There has to be a substantial increase in staff levels before you see a significant improvement in quality.”

Several published studies, including a report from the Institute of Medicine and one co-authored by Schnelle, have found links between staffing levels and the quality of care provided in licensed nursing homes.

Federal scrutiny
Tennessee’s regulation of the nursing home industry has come under scrutiny in audits conducted by the U.S. Government Accountability Office.

In the report issued in April, Tennessee failed to achieve passing marks in three areas: prioritizing complaints; performing timely investigations of complaints in cases in which patients were in immediate jeopardy; and performing timely investigations of complaints when a patient had endured actual harm.

In a 2008 report, the GAO cited Tennessee as one of nine states in which serious deficiencies were missed more than a quarter of the time. The auditors found that Tennessee inspectors missed 26.3 percent of the serious deficiencies — those that could cause actual harm or place patients in immediate jeopardy.

A year later, in August 2009, another GAO audit report cited Tennessee as the No. 1 state in which the number of poorly performing homes was understated. While only three Tennessee facilities had been designated as poorly performing and placed in a “special focus” category, GAO estimated the actual number should have been 14.

Currently the federal government categorizes one nursing home in the region, Imperial Gardens Health and Rehabilitation Center in Madison, as a special focus facility. Special focus facilities are subject to closer oversight and more frequent inspections. Homes participating in the Medicare and Medicaid programs are generally inspected at least once every 15 months.

Imperial Gardens Administrator Rene Sharp said the facility has corrected all the deficiencies cited in a state Health Department report issued this year.

Allen, the assistant health commissioner, in an email response to questions about the GAO reports, noted that the federal government, not the state, determines which homes are placed on the special focus list. She also noted that two of the studies were issued two or three years ago and that the department has taken steps to respond.

“The department does pay close attention to GAO reports,” she wrote.

She acknowledged, however, that the department’s nursing inspection team currently has a 31 percent vacancy rate, just as it did at the time of the audits. Twenty-four of the authorized 77 positions are vacant.

Department officials said they have been unable to fill the positions because registered nurses are in high demand and private-sector jobs pay higher.

Allen said the department has worked through the 2,850 backlogged cases noted in the GAO review and has only 12 left. In the meantime, however, the agency has built an additional backlog of 292 open complaints.

“We made a huge push to reduce the backlog of investigations with the staff we have, but it is unrealistic to expect employees to continue to perform at that level indefinitely. We need more staff to share the workload on an ongoing basis,” Allen wrote.

Short-lived victory?
Early this year, the Tennessee Supreme Court in a 12-page decision delivered a virtually complete victory to the family of a 57-year-old woman who died after a four-month stay at a Chattanooga nursing home.

The suit charged that Martha French, who had suffered a debilitating stroke, developed pressure sores or ulcers that, because of poor care, became infected, leading to her death from sepsis.

The decision reversed most of an unfavorable appeals court decision and concluded that French’s family could pursue medical malpractice and negligence claims against Stratford House, a 127-bed nursing home. That meant that all of the family’s claims would not be placed under the strict requirements of the state medical malpractice law.

In addition, the court ruled that the family could pursue negligence claims based on violations of state and federal regulations and under the state Adult Protection Act.

But even as lawyers assessed the victory, a move was afoot to undo it.

Despite protests from some legislators and advocates for the eldery, the nursing home provisions in the tort reform bill included a key provision that brings all claims against nursing homes under the strict limits of the medical malpractice law, eliminating separate claims for negligence and requiring plaintiffs to provide certification that the care provided did not meet local standards. Punitive damages also are limited to $500,000 or two times the pain and suffering claims. Claims under a protection from abuse also will be blocked.

Lawyers who regularly take nursing home negligence and malpractice cases say the new law completely reverses the French decision.

“I think it is going to effectively weaken protection for vulnerable adults. There will be much less accountability,” said James B. McHugh, a Mississippi attorney who has tried nursing home cases in Tennessee.

Mark Geller, a Memphis lawyer, said the law, by putting a cap on possible claims, will allow nursing home operators to calculate in advance how little care they can provide.

“A person’s life is worth $750,000. That’s it.”

Barfield said the nursing home industry in Tennessee was facing a financial crisis under the old system and changes were necessary.

“What this does is provide predictability so the companies can plan,” he said.

He said it remains to be seen whether the new law will negate the court ruling.

“We’ll see. The jury is still out,” Barfield said.

PACs gave to governor, sponsors of 2009 bill
D. Gerald Coggin, vice president of Murfreesboro-based National Healthcare Corp., one of the largest nursing home chains in the country, said it’s too early to predict what savings may result from the new law. He noted that nursing homes are already facing cutbacks in payments under the Medicare program.

One of NHC’s homes, AdamsPlace in Murfreesboro, achieved the top five-star ranking from CMS. The home gained the top score in three of four categories, including inspections and overall quality of care.

State campaign finance records show that Gov. Bill Haslam and key legislators got substantial contributions for their election campaigns from nursing home owners and affiliated political action committees.

Haslam’s committee collected more than $28,000 from the state nursing home association PAC, formed by National Healthcare Corp. and owners and officials of nursing homes. Sen. Bill Ketron’s campaign committee collected nearly $10,000, while Speaker Beth Harwell’s committee took in $11,000.

In 2009, Tennessee nursing home owners benefited from another act of the General Assembly. A measure backed by then-Gov. Phil Bredesen’s administration stripped from the law books pages of reporting requirements on adverse events and other problems in the state’s more than 300 licensed nursing homes.

The sponsors of the bill were all the recipients of campaign contributions from nursing home political action committees.

An aide to state Sen. James F. Kyle Jr., a Memphis Democrat and the Senate sponsor, said the law had to be changed because the state Health Department could not keep up with the law’s requirements.

“They had a big backlog, and this was a way to streamline things,” he said.

Allen confirmed that the department requested the change.

Kyle’s campaign committee collected $4,500 from nursing home PACs over the past three years. House sponsor Rep. Mike Turner collected $4,500 from nursing home PACs, while co-sponsor David Shepard brought in $3,000 from the nursing home interest for his campaign.

The Health Department spokeswoman said the change in reporting requirements enacted in 2009 enabled the agency to focus on more serious complaints and respond more quickly.

For Dennis Matthews, who saw an $11.5 million jury award literally disappear, the experience has left him with a bitter taste.

“I will never ever have faith in the judicial system again,” he said. He said his mother was supposed to be in the home for only 30 days’ rehabilitation. “She got no food or water. That was proven.”

Lawyers for the nursing home denied the charges.

Thursday, September 8, 2011


What to Do After an Accident

You thought they were going to stop.

They pulled right out like you were not there. There was no way you could avoid them.

You may have found yourself in this situation before. After an accident, people are stunned, injured, scared. Massive amounts of adrenaline dull pain in what is known the “fight or flight” response.

Post accident response in a serious collision is one of the things that you need to think through now, because at the time it is unlikely you will be thinking as clearly.

Here are steps you can take:

1. It is usually recommended that you stay in the car unless there is actual fire or burning or someone else is in immediate jeopardy. (The whitish powdery smoke you will see is from the airbags, more than likely, and is not dangerous.) Cars rarely catch on fire, but it can happen. Be careful, as many people are hit as pedestrians by passing motorists after an accident.

2. Dial 911. It is best that an ambulance with trained first responders evaluate everyone involved. Self-diagnosis after such an impact is difficult and even dangerous. Especially in cases of undiagnosed head or spinal trauma, permanent damage can be done by movement.

3. If you or another are able and out of the car, take cell phone photos of the scene. This proves the arrangement in case the cars are moved before police investigate. Do not get into fault discussions with the other parties.

4. Do accept treatment and recommendations from first responders. They are in a much better position to decide what you might require. Transport to a good Emergency Room, not necessary the closest, is desirable.

5. Follow up with general doctors and specialists as you require. The “muscle tightness” after the wreck is likely to be severe pain in the days following.

6. Contact your insurance company; and consult an injury attorney to discuss your right and responsibilities, if you believe you were not at fault.

Much like having a fire drill, these steps should be thought through before it happens. The Department of Transportation's National Highway Traffic Safety Administration estimated that 37,313 people were killed in motor vehicle traffic crashes in 2008. Motor vehicle collisions the leading cause of injury death among children worldwide 10 – 19 years old (260,000 children die a year, 10 million are injured) and the sixth leading preventable cause of death in the United States (45,800 people died and 2.4 million were injured in 2005). Odds are good that you will be in at least one crash during your lifetime.

You will have an idea of what to do if that happens.

David B. Peel is a local injury attorney who assists victims of car and truck accidents. Mr. Peel often speaks to civic clubs, churches, Sunday Schools, and other groups without charge. He may be reached at www.PeelLawFirm.com wherein other article may be found as well.

Thursday, September 16, 2010


Here are some steps you can take to evaluate your loved one's care in a nursing home:
1. Turn her over, or ask for a nurse to do so --look at the base of the back and her bottom for sores. If you see any take photos. If they are bandaged, come back and photograph during dressing change;
2. Look at her heels. (yes, take off the socks). Same drill as step 1.;
3. Keep a record of weight changes, paying close attention to drops which indicate malnutrition and dehydration;
4. Show up late in the the morning, has there been attention since last night?
5. Visit on weekends, and evening if possible.
6. If they may not be turning a bedridden loved on on 2 hour intervals, as required, consider sleeping over (if allowed) and journal the activity;
7. Visit often-- the more family involvement and questions, the better care!
If you see bedsores or other signs of neglect that cause damage, infections like sepsis, or even death, please contact me at once!
~David B. Peel

Friday, February 12, 2010

Our Society - Abortion to Nursing Homes


A society can be judged by how we treat the most helpless among us.
The single most helpless life is a “fetus” (Greek for “baby”). We have aborted 50 million lives in what is supposed to be the safest place on earth, their own mother’s wombs. This loss of 50 millions souls is also a loss of a large work force as well. This is one reason why Social Security is bankrupt, as many of the terminated children would be working and paying in their share during the 37 years since abortion was legalized.
Further, people are quick to blame God for things like cancer. However, it is possible that the scientist destined to cure cancer was sent, and was aborted. Ironically, many who are rabid in their support for healthcare reform do not believe in the right of healthcare for the unborn. Future generations may well look back on this as the “slavery of our time”… a time when one “race” of people had no rights. Not even the right to life.
The way our society treats the elderly is also troubling. Nursing Homes in Tennessee are the fifth worse in the whole nation. Many chronically under staff and have trouble with getting good aides when they do hire one. No doubt there are some who just cannot be cared for at home. And, there are certainly good nursing homes out there, but I wind up having to sue those that mistreat the elderly, allow infected bedsores and repeated falls.
I often say that the World War II generation was our finest generation. Too many are just shelved at nursing homes while their children’s worlds are in turmoil due to serial divorces and constant activity. The economy seems to be set up for both parents to have to work outside the home, and thus entrust the state with the education of the children. This is a very recent concept. All this hurts another class of people: our children.
Were things really better “Back in the good old days?” In the 1950’s, a couple's work schedules in the 1950s, the husband probably had a 40-hour working week. The time commuting to work was much lower and other activities probably accounted for 55-60 hours of his waking time. The mother was often a stay-at-home mother, and usually took a job as a teacher, nurse or secretary to pay extra bills from time to time. There was more time and enough money to support this home-centered lifestyle.
Now, our kids are busy too. Many parents have their children involved in a whole range of outside activities such as competitive sports. Oddly, this is in an effort to give our kids the best in life. Some of the sports actually play on Sundays, preventing church attendance as a family. What little theology is taught today to kids is poked fun of at school, as atheistic evolution is taught as fact! Parents have missed the main thing to teach children, which is how to have a personal relationship with Christ, because it was not taught to them. Lost in one generation! Families are rarely sitting down at the table to eat dinner together in our society. And if many families did, they would be too busy texting friends to talk.
The way we treat our unborn children, our elderly and our young children tell much about our society. The world was not always like this. It does not have to continue to spiral downward. No one can change things in your family until someone decides they need to change. Decide to be a family that has dinner together, that attends a Bible-teaching church together, that honors traditional marriage, that takes a stand on issues based on principles (not convenience) and that makes a difference for the short time we are here.

Wednesday, February 3, 2010

Tennessee's Nursing Home at the Bottom of the list - low staffing primary problem

Article on front page/top fold of the Tennessean…

TN nursing homes rank fifth worst in U.S.

Staffing levels are less than half what Medicare suggests

By Christina E. Sanchez

Poorly staffed http://health.state.tn.us/NursingHomes/index.htm">nursing homes have put Tennessee among the worst in the nation for quality of long-term care for a second year, a federal report shows.

Only four states had worse standings, according to a Tennessean data analysis.

That's because Tennessee has one of the lowest staffing requirements in the country — less than half of what Medicare recommends.

"We don't think the standard is enough," said Traci O'Kelley, assistant administrator at West Meade Place, one of only two nursing homes in the Nashville area to earn top marks in the survey.

But it is unlikely that facilities' staffing will get better anytime soon, in part because state law would have to require higher staffing levels, and funding for nursing homes would have to increase.

60% got low ratings

About 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. http://www.medicare.gov/NHCompare">Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

More than 60 percent of Tennessee's 319 nursing homes got low ratings — one or two stars — for staffing by registered nurses.

Overall, the state ranked in the bottom five. Only West Virginia, Texas, Georgia and Louisiana had lower average scores. However, Tennessee fared better than it did a year ago, when the star ratings earned the state's nursing homes a third-worst designation.

Tennessee's results were better this year in quality of care, which measures such factors as the number of patients developing bedsores and infections. Staffing levels remained the biggest problem.

"We have 319 nursing homes in the state. To have one out of four rated just as one star is a sign we are not doing our job in Tennessee," said Patrick Willard, AARP advocacy director.

Staffing law faulted

Advocates say the staffing level required by state law is not enough to care for nursing home residents, and that carries consequences: ignored bedside calls, medication errors and unanswered questions.

Under Tennessee law, each patient should have at least two hours of direct care each day, including 24 minutes of a licensed nurse's time. Standards in neighboring states vary, with Mississippi requiring 2.8 hours of direct care and Arkansas mandating more than 3.8 hours.

Medicare's standard of staffing is higher: four hours of care for each patient daily, including 55 minutes from a registered nurse.

"If you increase the minimum number of hours, then you are going to be pushing those nursing homes that are trying just to get by, and by doing that, you will improve the quality of care in nursing homes," Willard said.

To get a five-star rating for staffing, a nursing home must meet Medicare's standard. No nursing home in the Nashville area achieved five stars in that category.

West Meade Place earned four stars for staffing by registered nurses and three stars for overall staffing. O'Kelley, its assistant administrator, said the home strives to have more staff than is required. The 120-bed facility, which is usually 86 percent full, adjusts staffing based on patient volume and hires more nurses if needed.

"Because of acute care and patient needs, I don't think the job would be done effectively at that minimum staffing level," O'Kelley said.

Star system has flaws

The star system is useful as a starting point for families but should not be an end in itself, O'Kelley said.

"I am always amazed at how many people show up here just because we are a five-star facility, and had never stepped foot in here," she said. "People should visit, get to know the staff and ask around."

Proponents and critics of the star system say it is a useful tool, but it has flaws. Medicare tries to streamline the standards of all states into a one-size-fits-all scenario, they say.

"You have differences between states, different ideas about what constitutes a deficiency, and a lot of information is provided by the nursing homes themselves," Willard said. "It is a worthwhile measuring stick, but it is not the only tool for finding a facility for a loved one."

'A good first glance'

Medicare officials say a one-star rating does not mean a nursing home is a bad facility. All homes must meet baseline Medicare conditions, which are often higher than state standards.

"It's a good first glance for people," said Lee Millman, spokeswoman for the Centers for Medicare and Medicaid Services' Atlanta region, which includes Tennessee.

The agency even states on its own Web site that the report has limitations, noting that state requirements vary and that some data are self-reported and may reflect only a two-week period.

Medicare "uses a system of ranking for staffing that is based on desired staffing levels, not a required or mandated level," said Ron Taylor, executive director of the Tennessee Health Care Association. "Using that staffing level, a lot of facilities that have good, quality service don't rank really high because they don't meet (Medicare's) standard. But they meet the state standard."

Keith Smith, administrator and CEO of Spring Meadows Health Care Center in Clarksville, said it's good that the government tried to keep the ratings simple, but the program needs serious work.

"The whole system was very prematurely implemented and fundamentally flawed," Smith said. "But we try to work with it."

Spring Meadows received an overall one-star rating. It moved up in the area of quality from one star to three.

The ratings for staffing and surveys focus on regulatory compliance, not quality of care and outcomes, he said.

"I'm all about the public having a good tool to evaluate, but this is not it," he said.