A Carmichael nursing home supervisor admitted she was ordered to alter medical records of a 92-year-old patient, who died after developing rotting bedsores.

The state fined a Santa Monica nursing home for claiming a resident received physical therapy five days a week. At least 28 of those sessions were documented by nurse assistants who were not at work on those days. In Los Angeles, lawyers for a woman who was severely re-injured at a convalescent home discovered that nonexistent nurses made entries in her chart.

All that was detailed by The Sacramento Bee’s Marjie Lundstrom in 2011. Now, after failed legislative attempts in past years, Gov. Jerry Brown can correct this inequity by signing Assembly Bill 859 by Assemblywoman Susan Eggman, D-Stockton. The bill would help expose and thus discourage what was, until Lundstrom came along, a largely untold story of falsification of patient records in nursing homes.

Under a 1991 law, lawyers must prove to jurors by “clear and convincing” evidence that records were altered.  Eggman’s bill, backed by CAHNR, and plaintiff’s lawyers and the Peck Law Group, APC would ease the standard to a “preponderance of evidence”.

A legislative staff report on Eggman’s bill cited the case of Billie Underwood, a former minister. She died in a skilled nursing center in Stockton after the facility failed to change her bandages and tissue grew around them. The facility’s records had claimed the wound was cleaned daily.

That same staff report cited a 90-year-old woman who died after walking out of an alarmed door and falling. If staff members looked for her, they might have seen her crawling on the ground with fractured face bones. The facility tried to hide the circumstances of her death by destroying a video and written records.

Opponents of the legislation are formidable: The California Chamber of Commerce, the nursing home industry, insurance companies, the Civil Justice Association of California, which seeks to curtail the right to sue, and defenders of California’s limits on medical malpractice litigation. Their opposition is understandable.

“Fear of costly lawsuits has driven some nursing home administrators to re-create medical records to hide neglectful care,” Lundstrom wrote six years ago. But there’s an easy fix: Don’t neglect or abuse patients, and if something bad happens, don’t make matters worse by covering it up.

The vast majority of California’s 1,200 nursing homes do well by their clients and if they make a mistake, they own up to it, many of them do not and must be held accountable.

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When you are admitted to a nursing home, you will be asked to sign an admission agreement that explains your rights and responsibilities and those of the nursing home. In years past, this involved signing contracts written by nursing homes that often contained deceptive or illegal terms. Signing the Agreement The person being admitted to the nursing home is the only person required to sign the Standard Admission Agreement. (California Health & Safety Code §1599.65).

Section I (Preamble) of the Agreement states: If you are able to do so, you are required to sign this Agreement in order to be admitted to this Facility. If you are not able to sign this Agreement, your representative may sign it for you. Make sure you obtain a copy of the signed Agreement and any other documents presented or signed at admission.

Section XII of the Agreement requires the facility: To give you a copy of the signed agreement, all attachments, any other documents you sign at admission, and a receipt for any payments you make at admission, upon your request. Financial Responsibility of Residents’ Representatives Who Sign the Agreement The resident is responsible for paying any nursing home bills under the Agreement, not his or her family or friends. (Title 42 United States Code §1396r(c)(5), Title 42 Code of Federal Regulations §483.12(d)(2), California Welfare & Institutions Code §14110.8)

Signing the Standard Admission Agreement: As a resident’s representative does not make you responsible for using your own money to pay for care provided by the nursing home. Section II (Identification of Parties to this Agreement) of the Agreement states: IF OUR FACILITY PARTICIPATES IN THE MEDI-CAL OR MEDICARE PROGRAM, OUR FACILITY DOES NOT REQUIRE THAT YOU HAVE ANYONE GURANTEE PAYMENT FOR YOUR CARE BY SIGNING OR COSIGNING THIS ADMISSION AGREEMENT AS A CONDITION OF ADMISSION.

Signing Other Documents at Admission : You and your representative cannot be required to sign any other document at the time of admission or as a condition of admission or continued stay in a California nursing home. (Title 22 California Code of Regulations §73518) This right is stated in Section I, the Preamble to the Agreement. Do not sign any forms or documents that conflict with the Standard Admission Agreement or attempt to restrict your rights.

Avoid signing any documents that seek waiver of liability: binding arbitration or general consent to treatment. The Agreement already includes a general consent to treatment and emergency care in Section III so additional forms are not needed for this purpose at admission. Although you are not required to sign other documents, the nursing home may ask you to do so. It is usually best not to sign other documents at admission. Ask the nursing home to give you copies of any forms to review in advance before making decisions about signing them.

If you have any concerns or doubts about a document you are asked to sign, seek advice from The Peck Law Group, APC or advocate before doing so or agreeing to any Binding Arbitration.

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Decide the Type of Power of Attorney

There are four major types of power of attorney in California that you have to choose.

• Durable – Allows someone to act in the place of another for all financial decision making. Form is still valid if the person granting the power (‘Principal’) becomes incapacitated (Incapacitation is as someone who cannot think for themselves with a clear mind)
• General – Same as the Durable form except that if the Principal becomes incapacitated the form becomes void.
• Limited – Allows someone to act in the place of another for a specific or single duty. Upon the completion, the form becomes void.
• Medical – Allows someone to act in the place of another for all medical decision making.

California Rules Concerning Power of Attorney

California Probate Section 4121.  A power of attorney is legally sufficient if all of the
following requirements are satisfied:
   (a) The power of attorney contains the date of its execution.
   (b) The power of attorney is signed either (1) by the principal or
(2) in the principal's name by another adult in the principal's
presence and at the principal's direction.
   (c) The power of attorney is either (1) acknowledged before a
notary public or (2) signed by at least two witnesses who satisfy the
requirements of Section 4122.

California Probate Section 4122.  If the power of attorney is signed by witnesses, as provided
in Section 4121, the following requirements shall be satisfied:
   (a) The witnesses shall be adults.
   (b) The attorney-in-fact may not act as a witness.
   (c) Each witness signing the power of attorney shall witness
either the signing of the instrument by the principal or the
principal's acknowledgment of the signature or the power of attorney.

California  Probate Section 4123.  (a) In a power of attorney under this division, a principal
may grant authority to an attorney-in-fact to act on the principal's
behalf with respect to all lawful subjects and purposes or with
respect to one or more express subjects or purposes. The
attorney-in-fact may be granted authority with regard to the
principal's property, personal care, or any other matter.
   (b) With regard to property matters, a power of attorney may grant
authority to make decisions concerning all or part of the principal'
s real and personal property, whether owned by the principal at the
time of the execution of the power of attorney or thereafter acquired
or whether located in this state or elsewhere, without the need for
a description of each item or parcel of property.
   (c) With regard to personal care, a power of attorney may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and
entertainment.


California Probate Section 4124.  A durable power of attorney is a power of attorney by which a
principal designates another person as attorney-in-fact in writing
and the power of attorney contains any of the following statements:
   (a) "This power of attorney shall not be affected by subsequent
incapacity of the principal."
   (b) "This power of attorney shall become effective upon the
incapacity of the principal."
   (c) Similar words showing the intent of the principal that the
authority conferred shall be exercisable notwithstanding the
principal's subsequent incapacity.


California Probate Section 4125.  All acts done by an attorney-in-fact pursuant to a durable
power of attorney during any period of incapacity of the principal
have the same effect and inure to the benefit of and bind the
principal and the principal's successors in interest as if the
principal had capacity.

Do States Recognize Power of Attorney formed and Signed In Another State?

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Arbitration: When the language, format, and font used in the written arbitration agreement did not comply with the requirements of Health and Safety Code, section 1599.81, as implemented by California Code of Regulations, Title 22, section 72516, subdivision (d). The Arbitration agreement is unenforceable.

Arbitration agreements are becoming very very common in their use by Long Term Care Facilities specifically when an elder and dependent adult is being admitted to a facility, such as a nursing home.  Many times that Arbitration agreement is “slipped in” with the admissions agreement and usually not fully explained to the resident nor the resident’s legal representative.

An Arbitration agreement may be deemed enforceable if either the patient / resident signed the arbitration agreement or an individual with authority to sign on behalf of the patient / resident, such as someone who has been granted power of attorney signed the arbitration agreement.  If done so, the defense will usually file a Petition to Compel Arbitration so that the plaintiff or plaintiff’s successors in interest can not avail themselves to their constitutional right to a jury trial.  Contrary to the propaganda that is out there, the cost of Arbitration including paying the Arbitrator’s fees is much more than having the matter heard by a jury.

DO NOT SIGN ARBITRATION AGREEMENTS. THEY CAN NEVER BE USED AS A PRECONDITION TO BEING ADMITTED TO A SKILLED NURSING FACILITY IN THE STATE OF CALIFORNIA!!!

In the State of California, there a certain mandatory provisions that must be put into every skilled nursing facility arbitration agreement to make it enforceable.  Defense must comply with both Health and Safety Code, section 1599.81, as implemented by California Code of Regulations, Title 22, section 72516, subdivision (d). 

In many cases the language, format, and font used by the defense do not comply with the above-referenced laws which make the Arbitration Agreement legally unenforceable.

The specific warning ““[a]ny arbitration agreement shall be separate from the Standard Admission Agreement and shall contain the following advisory in a prominent place at the top of the proposed arbitration agreement, in bold-face font of not less than 12 point type:  ‘Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility.’ ” (§ 72516, subd. (d).  Failure to comply, makes the Arbitration Agreement unenforceable.

The Peck Law Group has the expertise to fight for your constitutional rights and has successfully opposed many petitions to compel arbitration.  If you don’t sign Arbitration  agreements, this shall never be an issue and you shall be able to keep your constitutional right to a jury trial.

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The Peck Law Group, a California Professional Law Corporation has been fighting / advocating for the rights of Nursing Home Residents in the State of California and San Bernardino County, against Nursing Home Abuse and Neglect for over thirty (36) years.  We fight for our clients’ rights and for just compensation for the injuries received by elders and dependent adults all over the State of California as a result of Nursing Home Abuse and Neglect.

Nursing Homes have an absolute duty to care for a resident upon admission to their facility.  Upon being admitted to a facility,  the resident is usually assessed by the Administrator of the Facility and / or the Director of Nursing.  If after assessment, the resident is admitted to the facility, that facility has thus now agreed that they are able to adequately care for the resident in their present physical condition upon admittance.

California Welfare and Institutions Code section 15610.63 provides: “Physical abuse” means any of the following:

(a) Assault, as defined in Section 240 of the Penal Code.

(b) Battery, as defined in Section 242 of the Penal Code.

(c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.

(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water.

(e) Sexual assault, that means any of the following:

(1) Sexual battery, as defined in Section 243.4 of the Penal Code.

(2) Rape, as defined in Section 261 of the Penal Code.

(3) Rape in concert, as described in Section 264.1 of the Penal Code.

(4) Spousal rape, as defined in Section 262 of the Penal Code.

(5) Incest, as defined in Section 285 of the Penal Code.

(6) Sodomy, as defined in Section 286 of the Penal Code.

(7) Oral copulation, as defined in Section 288a of the Penal Code.

(8) Sexual penetration, as defined in Section 289 of the Penal Code.

(f) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:

(1) For punishment.

(2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given.

(3) For any purpose not authorized by the physician and surgeon.

Welfare and Institutions Code section 15610.57 provides:

(a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

“[T]he statutory definition of neglect set forth in the first sentence of Welfare and Institutions Code section 15610.57 is substantially the same as the ordinary definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc. (2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)

Should you,  a loved one, and / or a family member have incurred injury such as Bed Sores, Pressure Ulcers, Dehydration, Malnourishment, Multiple Falls with Fractures in a California Nursing Home in San Bernardino County, please immediately contact the Peck Law Group, APC at 1-866-999-9085 to discuss your matter.  We will help you!!!

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What are the signs of Elder Abuse?

About 1 in 10 Americans over age 60 have experienced some form of elder abuse, according to the National Council on Aging.

Elder abuse can take many forms, including physical, emotional, sexual and verbal abuse, or exploitation, neglect and abandonment at the hands of caregivers. Caregivers may be those attending to an elderly person in an assisted living facility or nursing home, but may also be the victim’s children, spouses or other family members.

As few as 1 in 14 cases of abuse are reported, according to a study published by the National Research Council,  though Adult Protective Services agency data shows more people are reporting abuse.

Here are how to spot the signs of Elder Abuse and a caregiver who may be abusive.

Elder Abuse Indicators?

Whether at home or in an elder care facility, these signs may be indicators of abuse or neglect of an elderly person:

• Emotional disturbances: Appearing depressed, confused, or withdrawn. Victims may also be agitated or violent, or fearful around a particular person.
• Activity changes: Trouble sleeping, stops participating in activities he or she previously enjoyed, is isolated from family and friends.
• Physical signs: Unexplained weight loss, unwashed hair or dirty clothes, bed sores, or multiple unexplained bruises, burns or other injuries in various stages of healing. Victims may also have signs of trauma like rocking back and forth, or patchy hair loss.

The following are possible signs of an abusive caregiver:

• Economic indicators: Missing valuable items, unpaid medical bills supposed to be handled by caregiver, checks or healthcare directives that appear to be signed by the victim who is incapable of doing so or understanding.
• Social indicators: Caregiver prevents the victim from talking to visitors alone. Caregiver withholds affection toward the person, behaves aggressively or indifferently toward the victim or speaks of the person as though they are a burden. The victim may not want to be left alone with the caregiver.
• Abusive caregivers may also be financially dependent on the victim or have a history of mental illness, substance abuse, family violence or criminal behavior.

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The family of a nursing home resident who died — at least in part, due to pressure ulcers — can pursue punitive damages in a wrongful death suit against Golden LivingCenter-Stroud.

Federal magistrate Martin C. Carlson ruled this week that the family of Mary Ann Miller has grounds to seek damages in light of allegations that the facility failed to address her wound risk and later falsified medical records to cover it up.

This “is suggestive of a consciousness of guilt, and would provide evidentiary support for the mental state needed to sustain a punitive damages claim,” Carlson wrote.

Miller’s family filed a 31-page civil complaint, claiming Golden Living staff overlooked the 79-year-old woman’s high risk for bed sores. She was admitted for rehabilitation services related to a broken hip and surgical repair in November 2015.

She died in February 2016, and an autopsy called two pressure ulcers a contributing factor, according to court records.

Golden Living did not respond to request for comment before McKnight’s production deadline.

The company had sought a dismissal of the punitive damage claim, citing Pennsylvania’s strict rules about non-harm awards. Carlson disagreed.

“The well-pleaded facts set forth in the (plaintiff’s) complaint plausibly state a claim for punitive damages under Pennsylvania law since, fairly construed, this complaint alleges that the defendants were subjectively aware of Mrs. Miller’s heightened susceptibility to bed sores, yet neglected to treat this condition until Mrs. Miller was suffering from stage 5 necrotic ulcers,” Carlson wrote.

In January, a different federal judge allowed punitive damage claims to proceed against another Golden Living nursing home where lawyers say a woman fell seven times before being transferred with a dislocated hip.

Should you or your loved one be the victim of Bedsores also known as Pressure Sores and Decubitus Ulcers causing extreme pain and suffering, and possible infections, and be the victim of numerous falls causing serious injury, please contact the Peck Law Group, APC TOLL FREE AT 1-866-999-9085.  WE WILL HELP YOU!!!

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When a party who has engaged in arbitration in good faith, is unable to afford to continue in such a forum, that party may seek relief from the Superior Court in the State of California.

If sufficient evidence is presented on these issues, and the court concludes the party’s financial status is not a result of the party’s intentional attempt to avoid arbitration, the court may issue an order specifying: (1) the arbitration shall continue so long as the other party to the arbitration agrees to pay, or the arbitrator orders it to pay, all fees and costs of the arbitration; and (2) if neither of those occur, the arbitration shall be deemed “had” and the case may proceed in the Superior Court.

At oral argument in this case, the defendants claimed that allowing parties to seek relief from arbitration in the courts based on their current financial condition creates an open invitation for abuse by those seeking to escape their arbitration obligations. the California appellate court opined “We seriously doubt parties will purposefully make themselves impecunious to have their cases returned to the courts. Regardless, we are more concerned with deep-pocketed parties leveraging their wealth to deprive their opponents of the right to resolve their disputes, than we are with parties choosing to bankrupt themselves as a way out of arbitration and into court. And, under our holding  a court may not grant relief if the evidence demonstrates a party’s financial status is a result of the party’s intentional attempt to avoid arbitration. “

As our Supreme Court has explained, “[b]oth California and federal law treat the substitution of arbitration for litigation as the mere replacement of one dispute resolution forum for another, resulting in no inherent disadvantage.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1152.) With the rising costs of arbitration (see Toyo Tire Holdings Of Americas Inc. v. Continental Tire North America, Inc. (9th Cir. 2010) 609 F.3d 975, 980-981), the California Appellate decision in Rae Weiler v. Marcus Millichap Real Estate Investments, Inc. California Fourth District Court of Appeal Division Three, ensures those compelled to arbitrate will not, as a result of finances, be inherently disadvantaged.

A very sound reasoned decision by the California Appellate Courts.

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What is elder abuse? In general, elder abuse refers to intentional or neglectful acts by a caregiver or “trusted” individual that lead to, or may lead to, harm of a vulnerable elder.

Physical abuse, neglect, emotional or psychological abuse, financial abuse and exploitation, sexual abuse and abandonment are considered forms of elder abuse. Self-neglect is also considered mistreatment.

Who is at risk?  Elder abuse can occur anywhere; in the home, in nursing homes or other institutions. It affects seniors across all socio-economic groups, cultures and races. Studies reveal that women and “older” elders are more likely to be victimized. Dementia is a significant risk factor. Isolation, mental health and substance-abuse issues of both abusers and victims – are also risk factors.

NEGLECT

Lack of basic hygiene, adequate food, or clean and appropriate clothing.

Lack of medical aids (glasses, walker, teeth, medications)

A person with dementia left unsupervised

A person confined to bed left without care

A home cluttered, filthy, in disrepair, or having fire and safety hazards

A home without functional amenities; refrigerator, stove, adequate heating/cooling, etc.

Look for untreated pressure sores, infections, dehydration, malnourishment, multiple falls, elopement, and aspiration pneumonia.

FINANCIAL ABUSE/EXPLOITATION

Lack of amenities which victim could afford

Vulnerable elder/adult “voluntarily” giving uncharacteristically excessive financial reimbursement/gifts for needed care and companionship

Caregiver has control of elder’s money but is failing to provide for elder’s needs

Vulnerable elder/adult has signed property transfers (Power of Attorney, new will, etc.) but is unable to comprehend the transaction or what it means

PSYCHOLOGICAL/EMOTIONAL ABUSE

Unexplained or uncharacteristic changes in behavior, such as withdrawal from normal activities, unexplained changes in alertness, or other

Caregiver isolates elder (doesn’t let anyone into the home or speak to the elder)

Caregiver is verbally aggressive or demeaning, controlling, overly concerned about spending money, or uncaring

PHYSICAL/SEXUAL ABUSE

Inadequately explained fractures, bruises, welts, cuts, sores or burns

Unexplained sexually transmitted diseases

What should you do if you suspect abuse? Report your concerns. Most cases of elder abuse go undetected. Don’t assume that someone has already reported a suspicious situation. The agency receiving the report will ask what you observed, who was involved, and who they can contact to learn more.  You do not need to prove that abuse is occurring; it is up to the professionals to investigate the suspicions.

To report suspected elder abuse or dependent-adult abuse in a nursing home or long-term care facility, contact The Peck Law Group, APC toll free at 1-866-999-9085  or at our website www.thepecklawgroup.com.

Source: National Center on Elder Abuse (NCEA) – Red Flags of Abuse.

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Many many skilled nursing facilities have been revealed to be a hotbeds of neglect and abuse that put its residents at risk of grave danger and in direct harm. Blatant neglect by nurses, persistent roach and insect infestations, medical and hygiene neglect, bedsores, dehydration, malnutrition, numerous falls, infections, and the nursing staff ignoring basic health and safety standards, all appear to be chronic problems.

While nursing homes are supposed to be facilities where elderly and disabled people can be safe and well cared for, the opposite is too often true. Residents of nursing homes are often vulnerable and isolated and can easily fall victim to neglect or abuse by staff. This is especially true of the residents who are unable to speak up against injustice and advocate for themselves. Warning signs that may indicate mistreatment may easily go unnoticed by family or visitors, and unreported by employees.

Bruising or fractures, scratches or avoidance of physical contact may be symptoms of physical abuse. Bed sores or lack of medical attention may indicate medical neglect, while signs of personal hygiene neglect may encompass an uncared for appearance or soiled clothing. Social, psychological or emotional neglect are also forms of mistreatment and warning signs may include listlessness, depression, non-responsive behavior or anxiousness.

In the most severe cases, abuse and neglect at nursing homes can even lead to wrongful death. It is important to note that even though “nursing homes are considered health care providers, allegations and proof of Elder Abuse, can lead to significant damage claims, attorney’s fees, and for the severely egregious matter, punitive damages says California Elder Abuse Attorney Steven Peck.

If the rights of residents, which are protected by the California Welfare and Institutions Code are violated, then the resident, the family, the power of attorney, the guardian, or the successor in interest, can bring a case against the facility.

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