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

The family of a paraplegic woman who fell while in her wheelchair on an outing with an adult day care center is suing the owners of the facility. Shelly Guinn, the victim, was born with cytomegalovirus, which rendered her paraplegic. She is 41 inches tall and weighs 41 pounds. She is totally dependent on her care givers to look out for her. Shelly suffered cuts, scrapes and bleeding from her mouth, requiring care at the hospital.

Shelly’s mother said, “She could break so easily. She could have snapped her neck. She could have died." Shelly’s mother said that she was not given an explanation for how the fall happened, which suggests that no care giver was in the vicinity WHEN it happened, which may be the explanation for WHY it happened. One would think that any care giver who was there could describe what took place. If no one was there looking out for Shelly, then something very easily could have gone wrong to cause the accident.

A common factor to these types of incidents is that the dependent adult's medical or physical condition may prevent them from being able to describe what happened to them.

The article did not say, but the lawsuit is presumably brought under the California Elder Abuse and Dependent Adult Civil Protection Act. The same law that protects adults age 65 and older also protects “dependent adults” ages 18 to 64 who have physical or mental conditions that render them dependent on others. That law provides an incentive for facilities caring for elders and dependent adults to take good care of them by shifting the cost of the victim's attorney fees on to the culpable facility when the injury is the result of "reckless neglect."

One way that Shelly’s lawyer can establish that the incident was the result of “reckless neglect” and not simple negligence is to show a pattern of deficient care at the day care center or others operated by the same company.

The defendants are Ellen and Dan Fischer, the owners of Care Administration and Management Professionals, a day care facility in Dublin. They also operate two similar operations, Community Day Program in Fremont and Dublin Day Program.

You can help Shelly. If you saw the incident involving Shelly or if you have any information about other incidents at the day care facilities operated by Care Administration and Management Professionals, please contact her lawyer, Jay Renneisen, at (925) 280-8900.

To read the article in the Contra Costa Times, click here

Felicia Curran
www.ElderAdvocacyLaw.com