Did you ever think that the term "death panel" would be applied to the scenario in which you speak to your doctor about making an advanced directive, stating your wishes in the event that you became comatose, in a vegetative state, or needed to be kept on a ventilator?


That's the term that is being used by the right wing of the Republican Party (including Rush Limbaugh, Glen Beck, and Sarah Palin --who said that Americans would have to "stand in front of Obama's death panel so his bureaucrats can decide, based on a subjective judgment of their level of productivity in society, whether they are worthy of health care") to describe the provision in the healthcare reform bill that would authorize Medicare to reimburse a physician for providing counseling sessions about end-of-life directives.

Do these right wing pundits even know what an advanced directive is? The AARP, not exactly a subversive left wing group, recommends that seniors complete advance directives so that their wishes will be known to their families and doctors in case they are unable to speak for themselves in a medical emergency. Believe me, a crisis situation in an emergency room or hospital is not the time to consider for the first time how you would feel about living on a ventilator for the rest of your life, or how you would feel about being kept alive in a vegetative state for the rest of your life, or how you would feel about any one of a number of calamities that could befall you in the event of a medical emergency. The idea that your physician would be reimbursed by Medicare to discuss the matter with you, at the time of, or in advance of any medical crisis, is a good one, and by no stretch of the imagination can it be compared to a "death squad."

In fact, it was a Republican Senator, Johnny Isakson of Georgia, who originally made the Medicare proposal that is being labelled "death panel", back in 2007 when he co-sponsored a Medicare End-of-Life Planning Act. On August 10th, Senator Isakson told the Washington Post that analogizing physician counseling for advanced directives to "death panels" is "nuts."

To see President Obama address the death panel issue directly, look at this excerpt of his August 11th town hall meeting in Portsmouth New Hampshire -- click below




To read the text of the town hall meeting click here.

To read the AARP article about advanced directives, click here.

To read the Washington Post's interview with Senator Johnny Isakson,click here.

Felicia Curran
www.ElderAdvocacyLaw.com

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

In an update to a previous entry, the The Los Angeles Times is reporting that the new management of the California is seeking to more than triple the size of their enforcement staff, and to raise licensing fees, in order to get on top of the backlog of patient complaints against nurses, who are otherwise still practicing as the charges go uninvestigated. Congratulations again to the terrific investigative reporters at the Los Angeles Times and Propublica for bringing to light the quagmire of complaints at the BRN.

Whether the Governor and the Legislature will approve this type of staff increase is unknown, but if the cost of the staff increase is paid for by raising the licensing fees paid to the State by registered nurses, perhaps it will fly. Let's hope.

The state agencies that license nursing homes/skilled nursing facilities (the California Department of Public Health) and residential care facilities for the elderly (The Department of Social Services Community Care Licensing) are, in my opinion, even more grossly understaffed and hopelessly behind in responding to complaints on behalf of nursing home residents and the elderly living in care homes and assisted living facilities. And the idea of financing staff increases by raising licesning fees on nursing homes would be a brilliant move. Let's hope that will be next on some investigative reporters' list, because without some kind of crisis, or that type of reporting, it isn't likely to happen on its own.

To read the LA Times story, click here.

Felicia Curran
www.ElderAdvocacyLaw.com

Propublica and The Los Angeles Times published another article today in their series of exposes on the California Board of Registered Nursing (BRN) – the state agency with regulatory oversight of the State’s registered nurses.

Today’s article focuses on the boondoggle “Diversion” program run by the BRN for nurses with admitted or known drug or substance abuse problems. Under diversion, nurses with substance abuse problems who are facing disciplinary allegations, or who have yet to be charged, voluntarily agree to a set of conditions, including random drug tests, drug treatment, and pledging not to work without the BRN’s permission. In exchange, the BRN, according to Propublica, “suspends the disciplinary process, keeping secret the nurses' participation in the program.” Times/Propublica reporters combed over records, documenting “participants who practiced while intoxicated, stole drugs from the bedridden and falsified records to cover their tracks.”

The problem comes with the BRN’s lack of oversight of nurses in the program – they reportedly do little to ensure that the nurse addicts in the program keep their word and don’t work, and the secrecy of the program prevents the public and potential employers of the nurses from knowing about their abuse problems. Because of the lack of oversight of diversion participants, the way the BRN finds out that a nurse has fallen off the wagon is often that the nurse picks up a new case - for example, either harms a patient or is caught stealing drugs from a hospital where he or she works -- even stealing drugs meant for a patient.

The BRN program also reportedly tolerates frequent relapses by participants. The Propublica story describes in detail the case of Melony Currier, R.N., pictured here in a 2006 mug shot, who had 5 “relapses” in the 4 years she was on diversion - including multiple incidents in which she stole drugs from clinics or hospitals. Propublica reports that, “even after the program expels nurses . . . the board takes a median 15 months to file a public accusation -- the first warning to potential employers and patients of a nurse's troubles.” Ten months more go by, on average, before the BRN imposes discipline on the errant nurse, “based on the Times/ProPublica review of disciplinary records filed since 2002.” In the case of nurse Currier, the BRN filed public charges against her some 5 ½ years after it became aware of her drug problem. In the meantime the nurse can continue to work. The upshot in the Currier case was that the BRN suspended her license for a year, after which time she was free to return to work.

The BRN does not track the relapse rate of nurses who complete the program either.

The Propublica/Times article discusses the case of another R.N., 32 year old Chad Matheny,pictured here, who died of an accidental overdose of drugs he stole from clinics where he worked. The Time/Propublica article quotes his mother, Gaytha Minor, a veteran nurse herself as saying that “ most angers her is that the board didn't step in to protect the public – "How many patients suffered because of my son?"

To read the excellent article, click here and here.

Felicia Curran
www.ElderAdvocacyLaw.com