$6M Jury verdict in morphine overdose death of Arizona nursing home resident

A.J. FLICK, Tuscon Citizen

Published: 05.14.2008

A jury awarded a Tucson family $6 million in a lawsuit brought after an ailing 81-year-old relative died of a morphine overdose.

Mary Culpepper and two other relatives last month were awarded $2 million each, with the cost to be paid 90 percent by operators of a nursing home, Manor Care Health Services, and 10 percent to be paid by Tucson Medical Center.
Culpepper sued Manor Care, TMC, a doctor, nurse and pharmacy over the Dec. 8, 2003, death of her mother, Sylvia Culpepper.

She was admitted to TMC on Dec. 2, 2003, suffering from sciatica, a painful nerve condition.
On Dec. 4, 2003, she was prescribed 15 milligrams of morphine twice a day. Two days later, her dosage increased to 30 milligrams, twice a day.

When Culpepper was transferred from TMC to Manor Care, prescription orders contained both dosages.
According to the lawsuit, the Manor Care staff failed to note the discrepancy in the prescriptions and gave her both dosages, both twice a day.

An autopsy determined that Culpepper died of acute morphine intoxication.
According to the jury’s verdicts, the doctor, nurse and pharmacy weren’t to blame for the death.

May 15, 2008

Serious Deficiencies in Nursing Homes Are Often Missed, Report Says

By ROBERT PEAR, New York Times

WASHINGTON — Nursing home inspectors routinely overlook or minimize problems that pose a serious, immediate threat to patients, Congressional investigators say in a new report.

In the report, to be issued on Thursday, the investigators, from the Government Accountability Office, say they have found widespread “understatement of deficiencies,” including malnutrition, severe bedsores, overuse of prescription medications and abuse of nursing home residents.

Nursing homes are typically inspected once a year by state employees working under contract with the federal government, which sets stringent standards. Federal officials try to validate the work of state inspectors by accompanying them or doing follow-up surveys within a few weeks.

The accountability office found that state employees had missed at least one serious deficiency in 15 percent of the inspections checked by federal officials. In nine states, inspectors missed serious problems in more than 25 percent of the surveys analyzed from 2002 to 2007.

The nine states most likely to miss serious deficiencies were Alabama, Arizona, Missouri, New Mexico, Oklahoma, South Carolina, South Dakota, Tennessee and Wyoming, the report said.

More than 1.5 million people live in nursing homes. Nationwide, about one-fifth of the homes were cited for serious deficiencies last year.

“Poor quality of care — worsening pressure sores or untreated weight loss — in a small but unacceptably high number of nursing homes continues to harm residents or place them in immediate jeopardy, that is, at risk of death or serious injury,” the report said.

Nursing homes must meet federal standards as a condition of participating in Medicaid and Medicare, which cover more than two-thirds of their residents, at a cost of more than $75 billion a year.

The study was done at the request of Senators Charles E. Grassley, Republican of Iowa, and Herb Kohl, Democrat of Wisconsin, who is chairman of the Senate Special Committee on Aging.

Mr. Grassley and Mr. Kohl have introduced a bill to upgrade nursing home care and increase the penalties for violations of federal standards. The maximum fine, now generally $10,000, would be increased to $25,000 for a serious deficiency and $100,000 for one that resulted in a patient’s death.

The senators are pushing to have their bill included in a package of Medicare changes that Congress is expected to pass next month.

But the American Health Care Association, a trade group for nursing homes, opposes the Grassley-Kohl bill in its current form.

Tuesday, May 13, 2008
KATHLEEN GLANVILLE The Oregonian
A Multnomah County jury on Monday ruled that an 86-year-old woman with Alzheimer’s disease suffered a loss of dignity when Lake Oswego police forced her to the floor of her nursing home and handcuffed her — even though she couldn’t remember it the next day. The jury awarded more than $900,000 to the family of the late Elvera Stephan for the way she was treated the night of April 13, 2006, at The Pearl at Kruse Way in Lake Oswego. The jury agreed by an 11-1 vote that Avamere Health Services, the corporate owner of the Alzheimer’s care center, had acted with malice or reckless indifference. Kelly A. Giampa, who represented Avamere, said she was disappointed and surprised by the verdict. Avamere has not decided whether to appeal.
Although Stephan died May 3, the weekend before the trial ended, family attorney Scott Kocher said her spirit was very much present when he summed up the case last week in Multnomah County Circuit Court.
He placed a poster-sized photograph of the elderly woman before the jury during his closing arguments. In the photo, Stephan is smiling warmly as her husband embraces her, four months before she came to live at The Pearl.
Stephan’s children moved her into the Alzheimer’s care center in early April 2006 after her husband became seriously ill and was hospitalized. Within a few days she became agitated, wandering the nursing home barefoot in her pajamas, confused and, according to her caretakers, dangerously aggressive. The caretakers notified a registered nurse in another part of the nursing home, who called the woman’s doctor for guidance. He said Stephan should be taken to the emergency room for evaluation and medication. The nurse called 9-1-1 to summon an ambulance, and because she told the emergency dispatcher that the patient was extremely aggressive, Lake Oswego police responded as well. But jurors said she didn’t look dangerous on a surveillance video from the nursing home. She was gesturing with a telephone receiver but didn’t try to hit anyone with it.
Two officers forced the elderly woman to the floor, where they rolled her onto her stomach and handcuffed her hands behind her back. She remained on the floor on her stomach for six minutes until paramedics put her on a stretcher and took her to the hospital, according to Kocher. She returned to The Pearl the next day, when a nurse reported that her wrists were bruised but she was “calm and compliant.” A state investigator found the nursing home at fault for failing to assess the woman’s condition and intervene in a timely manner. The state fined the facility $300 on Aug. 1, 2006.
Defense’s argument:
Stephan’s son, James, testified that he didn’t learn about what had happened to his mother for six days, when he was told by the relatives of another patient at The Pearl. During the trial, experts hired by the defense argued that staff had followed proper procedures and weren’t responsible for the actions of the police. Giampa also said Stephan’s daughter didn’t fully inform The Pearl staff about Stephan’s aggressive behavior and therefore shared responsibility for what happened. “Maybe she was afraid The Pearl wouldn’t take her if they knew she had aggression,” she argued in a closing statement, adding that the elderly woman should have been on anti-psychotic medication. The video of the police subduing the woman was played for the jury. Giampa conceded the incident looked bad. “It looked very undignified. It’s sad to see her on the floor like that.” However, she argued that Stephan didn’t remember what happened so she couldn’t have experienced a loss of dignity. “Dignity is eternal” That was a key question in the trial because the Stephan family sought damages in part for their mother’s loss of dignity and embarrassment. Kocher quoted the facility’s resident bill of rights: “The first right is to be treated as an individual with dignity and respect.” “Dignity is eternal,” Kocher said. “If dignity were not eternal, we would not have cemeteries. . . . Just because she had Alzheimer’s disease or memory loss. . . does that mean she’s not entitled to the same kind of dignity as you or I?” Members of the jury found that a convincing argument. Lead juror Courtney Szper said that if a patient with memory loss couldn’t experience a loss of dignity, “that gives carte blanche for elder-care facilities to do anything.”
Kocher had asked the jury to award Stephan’s family $1 million to send a message to corporations that care for Oregon’s elderly and vulnerable. The jury agreed on $4,200 in economic damages — the cost of Stephan’s shared room for a month — and $400,000 in noneconomic damages. The jury then awarded $500,000 in punitive damages. Under state law, 60 percent of punitive damages go to the state victims assistance fund.

By Kim Dixon

WASHINGTON, May 1 (Reuters) – The government’s Medicare program on Thursday proposed payment cuts to reimburse nursing homes that treat more than 1 million of the nation’s elderly.

The Centers for Medicare and Medicaid Services (CMS) announced a proposed 0.3 percent cut to reimbursements, which if enacted will hurt Kindred Healthcare Inc (KND.N: Quote, Profile, Research), Skilled Healthcare Group Inc (SKH.N: Quote, Profile, Research) and Sun Healthcare Group Inc (SUNH.O: Quote, Profile, Research).

The looming decision has beat down shares of publicly traded nursing homes since February, when a proposal to trim $4.7 billion in payments over five years first surfaced.

Analysts said they were still dissecting the roughly 100- page proposal, but several said it was in-line with market expectations. Some earlier said the initial proposal in the president’s budget could be softened, due to lobbying from industry and lawmakers. That did not appear to happen.

“Clearly CMS is flexing their muscle,” Ipsita Smolinski, a Washington analyst at JP Morgan said.

The rule is still subject to public comment period for further lobbying.

Earlier in the day, a trade group for nursing homes put out an estimate the cuts could have a total economic impact of $4.2 billion in one year, impacting jobs and state tax revenue.

“This is a net negative for the profession as it’s proposed right now,” said Susan Feeney, a spokeswoman for the American Health Care Association (AHCA).

The analysis was conducted by the consultants the Lewin Group.

Nursing home companies rely on government health care funding to pay for most of their services. Between 1 million to 1.5 million Americans live in nursing homes, a number expected to swell as the baby boomer population ages. (Reporting by Kim Dixon; Editing by Andre Grenon)