The San Francisco Chronicle is running a series of articles under the caption "Dead by Mistake" that is an extremely interesting look at the needless deaths and injuries caused by preventable medical errors. Yesterday's article, "Secrecy Shields Medical Mishaps From Public View" discusses how little progress has been made since a 1999 federal study called "To Err Is Human" outlined steps the medical profession can take to cut the number of deaths by medical errors in half. It shows how the secrecy surrounding hospitals, the lack of compulsory reporting of mistakes, and the financial incentives given to hospitals, all combine to perpetuate if not encourage medical errors.

The article states that "A national investigation by Hearst Newspapers, including The Chronicle, found that the hospital industry, the federal government and most states have failed to take the effective steps outlined in the report a decade ago. Consequently, over that period, as many as 2 million Americans have died needlessly of preventable medical mistakes." The idea is that hospitals can prevent medical errors by setting up protocols, systems, and procedures that provide safety checks and balances to keep patient's safe, much the way that years ago car manufacturers began to design cars with safety features (such as ignitions that won't start unless the car is in park) that can prevent accidents from happening.

Why wouldn't a hospital want to save lives and prevent accidents by minimizing the number of mistakes they make? According the the Chronicle's report, "Hospitals can actually lose money by providing safer care. For example, when Utah's Intermountain Healthcare hospital chain improved its system for prescribing heart patients the proper medications on discharge, rehospitalizations were reduced by 900 beds a year. As a result, the hospital lost $3.5 million in revenue. 'To my hospital administrators, there was actually a certain amount of whining about this,' said Intermountain executive Dr. Brent James, another "To Err Is Human" co-author."

Medicare has recently taken the approach of denying payment to hospitals for "Never Events" -- viz.,illnesses and injuries patients pick up in the hospital that are entirely preventable if proper procedures are followed. Included in the list of Never Events are pressures ulcers or bed sores, and post-surgical infections. The idea is that if hospitals know they will not be able to bill the patient's Medicare for illnesses caused by the hospital's negligence, the hospital will stop negligent practices that cause injury.

New reporting laws, such as a 2007 California law that require hospitals to report errors to the the California Department of Public Health, and which requires the Department to investigate the error within 48 hours, also can make a difference.


A companion article, Lost, Stolen, or Never Existed profiles patients who have been the victim of medical mistakes. By reading the stories of the victims of medical mistakes you can hopefully learn something that might might protect you or your family next time you are in the hospital.

To read the Chronicle's article, Click here.

The Chronicle has also set up a website that has lots of information on medical errors, www.deadbymistake.com.

Felicia Curran
www.ElderAdvocacyLaw.com

Government-run nursing homes can be held liable for neglect and abuse of their residents under a federal civil rights statute, Section 1983 of Title 42 of the United States Code, under a recent ruling by the 3rd Circuit Court of Appeal. In Grammer v. Hazel the federal appeals court for the Third Circuit (which covers Pennsylvannia, Delaware and New Jersey) held that the Federal Nursing Home Reform Act gives residents of state and county-run facilities the right to bring federal civil rights lawsuits over inadequate care.

In the Grammer v. Mercy case, the lawsuit was brought on behalf of Melviteen Daniels, a deceased resident of the John J. Kane Regional Center at Glen Hazel, in Pittsburgh. At the nursing home, Melviteen is alleged to have acquired pressure ulcers due to neglect; the pressure ulcers became infected, causing her death by septic infection.

Thanks to the lawyers (D. Aaron Rihn and Bob Daley, Robert Peirce & Associates, Pittsburgh, Pennsylvania)who brought the case on behalf of Melviteen's family, for their creative advocacy for their clients.

The ruling is especially significant for nursing home residents who live in states that do not have laws allowing civil lawsuits for elder abuse or neglect, because such residents can rely on the Grammer v. Hazel ruling to bring elder abuse lawsuits, in federal court, or in state court under federal law. To read the 3rd Circuit's decision, click here.

One open question is to what extent this ruling can be made applicable to nursing homes that are not government-operated but which receive government funds, such as Medicare and Medicaid payments (which virtually all nursing homes do). The lawsuit in Grammer was brought against a county-operated nursing home, under Title 42 U.S.C. Section 1983, which authorizes lawsuits against state-entities for violation of federally guaranteed rights. It is an open question whether a nursing home resident can sue a privately-owned nursing home directly under the Federal Nursing Home Reform Act (FNHRA), but one which the law surely lends itself to.

Felicia Curran
www.ElderAdvocacyLaw.com

Thought that you'd never be paying $4.79 for a gallon of gas? What if you are an elderly or homebound individual? Think the high price of gas doesn't affect you? Think again: What if you depend on Meals on Wheels or other home health support services for your very survival in your home?

The sharp increase in the price of gas is having dire effects on the nation’s home health agencies, and in turn on the elderly and homebound individuals they help. According to the National Association for Home Care & Hospice (NAHCH), there are 12 million people nationwide who are so disabled that they cannot leave home without assistance, and who are able to live in their own homes, and avoid a nursing home because of the assistance they receive from home health agencies. Collectively, the NAHCH reports that home support agencies employees drive nearly 5 billion miles each year to care for homebound individuals.

Many home health agencies operate at break-even, and 44% of home care agencies reported that they LOST money during 2007, and the rising cost of gas was reportedly a big factor in their operating in the red.

The New York Times reports that employees of home health agencies, and volunteers of federal programs such as Meals On Wheels, who are expected to use their own cars and pay for their own gas, are also being affected. Katie Clark (pictured here), a single mother of two, drives 700 miles a week in rural Michigan to provide home care for Bill Harmon, 77, and his wife Evelyn, 85 (pictured here) who has Alzheimer’s and is unable to care for herself. Katie is paid $9 an hour, or $250 a week, to care for the Harmons, but has to pay for her own gas, which now totals a whopping $100 a week. Katie says that the Harmons “are just like family to me” but she may not be able to continue to care for them because of the high price of gas. “Some weeks I have to borrow money to get here” she is quoted as saying.

When Evelyn started to develop Alzheimer’s disease 8-10 years ago, her husband promised her "Don’t worry, I’ll take care of you as long as I can.” Now he says that without Katie’s help, he would have to put his wife in a nursing home, and “probably need to live in one himself.”

The National Association for Home Care & Hospice is lobbying congress to take the following steps to help home health agencies help the elderly stay in their own homes and out of nursing homes:

1. Preserve the annual inflation updates for home health and hospice as provided in Medicare law.

2.Reinstate the 5 percent rural add on for home health services delivered to patients in rural areas.

3.Exempt home health agencies, hospices and their nurses and therapists from paying Federal gasoline taxes.
4. Recognize home telehealth between trained nurses and patients as the equivalent of in-home visits.

5. Retract the Medicare regulatory cuts of nearly 12% facing home health care in 2008-2011.

6. Withdraw the Medicare regulatory proposal to eliminate the Budget Neutrality Factor in the hospice wage index.

7. Grant home health providers priority status to fuel and supplies through “first responder” status in cases of public health emergencies and disaster situations.

To learn more about the National Association for Home Care and Hospice proposals, click here.

You can do your part by contacting your Congressperson or Senator and demanding that they pass and support THe NAHCH proposals. Click here for contact information for Congress and the Senate.

The read the New York Times article, click here.


Felicia Curran
www.ElderAdvocacyLaw.com

The chickens are coming home to roost as a result of President Bush’s mistake in privatizing the Medicare Part D Prescription Drug Benefit.

A New York Times article reviews audits done by the government relating to private Medicare plans, summarizing their findings by saying that “tens of thousands of Medicare recipients have been victims of deceptive sales tactics and had claims improperly denied by private insurers that run the system’s huge new drug benefit program and offer other private insurance options encouraged by the Bush administration.”

If you or a family member have a Medicare plan provided by these companies:

UnitedHealth
Wellpoint
Sierra Health Services
Humana
The Sterling Life Insurance Company
MemberHealth
Bravo Health

I suggest that you read the article, which describes how these private companies have adopted unscrupulous business practices resulting in delaying access to medications urgently needed by Medicare patients.

For example, the article says that in March 2007, Sierra Health Services ended drug coverage for more than 2,300 Medicare beneficiaries with H.I.V./AIDS, alleging that the patients had not paid their premiums. In fact, according to the audit, in many cases, the premiums had been paid, and beneficiaries had canceled checks to prove it. Sierra Health Services had canceled their drug coverage to avoid having to pay for the costly drugs that the AIDS patients needed. The patients were reinstated on the Sierra drug plan only after repeated requests from federal officials.

Read the New York Times article online - click here.

Felicia Curran
www.ElderAdvocacyLaw.com

The New York Times has a new article "At Many Nursing Homes, More Profit and Less Nursing." The article describes how consortiums of private investors such as Warburg Pincus and the Carlyle group are buying up nursing homes, and in the process, harming the residents of the nursing homes they acquire.

These private investment companies are even more profit-driven than the large publicly traded corporations that sold them the nursing homes. The Times’ analysis of records collected by the Centers for Medicare and Medicaid Services shows that “at 60 percent of homes bought by large private equity groups from 2000 to 2006, managers have cut the number of clinical registered nurses, sometimes far below levels required by law. . . . During that period, staffing at many of the nation’s other homes has fallen much less or grown.”

“The first thing owners do is lay off nurses and other staff that are essential to keeping patients safe,” says Professor Charlene Harrington, a professor of nursing at the University of California, San Francisco. Nursing home owners have made “a lot of money by cutting nurses, but it’s at the cost of human lives,” she says.

The typical nursing home acquired by a large investment company scored worse than the national averages on 12 out of 14 quality indicators that government regulators use to evaluate nursing homes. These privately owned homes also have far higher rates of citations and deficiencies than do homes owned by publicly held corporations.

One nursing home profiled by the Times is Habana Health Care Center in Florida (formerly owned by Arkansas-based Beverly Enterprises, Inc.). Within a year of being bought by a private investment group, the investors had cut the number of clinical registered nurses in half. They also slashed budgets for nursing supplies, resident activities and other services, and cut staffing and 48 other nursing homes. A former nursing manager of the home told the Times that “the [new] owners wouldn’t let us hire people. . . . We told the higher-ups we needed more staffing but they said we should make do.”

One of the victims was Mrs. Alice Garcia (pictured here with her grand-daughter). Within months of moving into Habana Health Care Center, she sustained repeated falls. The staff would also reportedly leave her seated in wet adult-diapers, and ignored her daughter’s repeated complaints that they were neglecting her care. Five months later, her daughter discovered “that her mother had a large bedsore on her back that was oozing pus.” The doctor at the hospital to which Alice was taken reportedly said she should have been given treatment for the pressure ulcer “much earlier.” Three weeks later, she passed away.

When her daughter (Vivian Hewitt, pictured here) sued the nursing home for neglecting Alice, her lawyer found out that the private investment group had set up layer upon layer of corporate structures that insulated the investors from legal liability for the injuries to their residents. These corporate shell games “unjustly protect investors who profit while care declines.” The corporation who is listed as the owner with the licensing agency does not have any assets, so even regulators cannot collect fines that are levied at the nursing home.

Although only 10 percent of nursing homes nation-wide are estimated to be owned by private investment groups, this is an alarming trend that demands action from our elected officials. Most of these nursing homes are paid with government funds, by Medicare or Medicaid, and the government needs to demand accountability. In fact, the government pays nursing homes an estimated $75 billion a year, under Medicare and Medicaid programs, according to the article. If a company receives government money for care provided at a nursing home, the company should be responsible for paying any fines levied by the government regulators and for any court judgments entered on behalf of neglected residents and their families.

What can you do? If you or your loved one lives in a nursing home, skilled nursing facility, or assisted living facility, find out from the licensing agency who the owner of record is. Compare that with the names of the corporations on the door, the names of the corporations that manage the facility, and own the building or land where the nursing home is located. Ask the nursing home employees the name of the company that writes their payroll check. If there are multiple corporations involved, that tells you that a shell game may be going on to insulate the owners from liability. Corporations who feel that they have nothing to lose are more likely to cut corners on care.

To read the Times article, click here.

Felicia Curran
www.ElderAdvocacyLaw.com