SEATTLE, Aug 22, 2008 /PRNewswire-USNewswire via COMTEX/ — 15 Washington Skilled Nursing Facilities Hit With Class Action Lawsuit

A class action lawsuit (Case #08-2-28645-2KNT), was filed today in King County Superior Court against Milwaukee-based Extendicare Homes, Inc., Fir Lane Terrace Convalescent Center, Inc. and its 15 long-term skilled nursing facilities in the state of Washington [see list by city at end of release] on behalf of Howard Steele as the personal representative for the estate of Lee Ann Steele and on behalf of all Washington citizens who resided in one of the company’s Washington facilities from July 1, 2004 through July 1, 2008.

“Extendicare facilities sound warm and fuzzy on paper. The type of place that you would want your parents or grandparents to be if they needed care you couldn’t provide them yourself,” says Long Beach, Calif., plaintiff attorney Stephen M. Garcia of The Garcia Law Firm. “The reality is that these facilities have a long record of excessive and repeated citations by the Washington Department of Social and Health Services for providing substandard care and care that violates the rights of residents.”

As an example, Garcia points to Franklin Hills Health & Rehabilitation Center in Spokane that was found by the WDSHS to have an astounding 35 notices of deficiencies in 2007 and 30 notices of deficiencies in 2006. It should be noted, Garcia points out, that the Washington state-wide average number of deficiencies was nine during those years.
The complaint, filed by The Garcia Law Firm of Long Beach, Calif., and Stritmatter, Kessler, Whelan, Coluccio of Seattle, Wash., alleges that Extendicare tells the public and prospective clients that it is operated in such a way that it meets the needs of its elderly and vulnerable adult residents by providing a certain standard of care. The complaint contends that in spite of the claims made on Extendicare’s websites and in its brochures and in other promotional materials, it is, in fact, cheating its residents and misrepresenting itself to prospective residents.
The complaint charges that the corporate officers, directors and managers of the company and of the homes deliberately keep the budgets so tight that appropriate staffing cannot be provided so that residents do not receive the care they need and should be getting, and for which they are paying. Extendicare uses false advertising to lure in unsuspecting prospective residents, thereby increasing its profits by charging for services that are not provided.

“Basically, we believe that Extendicare’s corporate strategy and policy is to maximize profits at the expense of the elderly and vulnerable people it claims to serve,” says Garcia. “We all know that there is a direct correlation between elder abuse and staffing levels. In my opinion, the Extendicare facilities in Washington are elder abuse cases waiting to happen. It’s just a matter of whose parents or grandparents are going to be the victims.”
Extendicare Homes, Inc. is a subsidiary of Extendicare Health Services, Inc. and is the licensee of a number of long-term nursing facilities. In the United States, Extendicare Health Services, Inc., (EHSI), based in Milwaukee, Wisc., is a wholly owned subsidiary of the Canadian company Extendicare Real Estate Investment Trust (Extendicare REIT). The company (symbol: ALC) is listed on the New York Stock Exchange.
Extendicare Health Services, Inc. operates, according to its website, 191 senior care facilities in the United States with approximately 19,200 beds.

Extendicare’s problems seem to range across the country. A July 27, 2008 article in the Milwaukee Journal-Sentinel reported that Extendicare owns 26 nursing homes in Wisconsin. Twenty of them have been cited for at least one serious care violation in the past three years. The article also reports that in 2005, Extendicare paid $2.3 million to Wisconsin in a civil settlement over serious nursing home violations arising from the 2003 death of a resident. Its Sun Prairie home, Willows Nursing & Rehabilitation, was cited for poor care after two residents died. Willows paid $198,045 in state and federal fines; it also is on the federal list of the worst homes in the country.
Nevertheless, Extendicare is expanding in Washington. A July 12, 2007 article in the Journal of Business reported that it had received preliminary state approval to build a 120-bed facility on the South Hill in Spokane. The article said that the facility is expected to open in July 2009.

By RICARDO ALONSO-ZALDIVAR, The Associated Press

WASHINGTON - Top doctors who run one of the most influential U.S. medical journals are giving the U.S. Supreme Court some unsolicited legal advice about a major case.

Lawsuits can serve as “a vital deterrent” and protect consumers if drug companies do not disclose risks to the U.S. Food and Drug Administration before it approves medicines for use, the editors of the New England Journal of Medicine said in a friend-of-the-court brief. The FDA “is in no position” to guarantee drug safety, the brief said.

At issue is Wyeth v. Levine, a case expected to be heard late this year that could have far-reaching implications for litigation over allegedly harmful drugs, such as the painkiller Vioxx.

Diana Levine, a Vermont guitarist, lost her right arm below the elbow after she was injected with Phenergan, a medicine for nausea, and developed gangrene. She sued the manufacturer, Wyeth, arguing that the company had neglected its duty to warn consumers that such injections could have devastating consequences. The courts in her state agreed, awarding her almost $7 million.

But Wyeth appealed, countering that it was protected from such lawsuits. It argued that the FDA regulatory judgment could not, in affect, be overruled by a state court. FDA scientists had weighed the risks and benefits of Phenergan in approving the drug’s prescribing literature, or label, as a guide for doctors. The FDA was aware of risks associated with injecting some forms of Phenergan, but the label did not specifically warn about the technique used with Levine.

Although the FDA is considered by many “the gold standard” in drug evaluation, the journal editors urged the justices to be skeptical.

“The FDA alone simply lacks the ability to serve as the sole guarantor of drug safety,” the doctors said in a brief filed Thursday. Without the discoveries dredged up by plaintiffs’ lawyers through liability litigation, “the FDA would be stripped of an essential source of information that the agency has consistently relied on when making its regulatory decisions, and the American public would be deprived of a vital deterrent against pharmaceutical company misconduct.”

The journal’s editor, Dr. Jeffrey M. Darien, said in an interview that he hoped arguments over legal distinctions would not obscure the reality that the FDA is overwhelmed trying to keep up with drug safety problems, which can range from rare but serious side effects, to shortcomings in manufacturing plants as far away as China.

“Even if the FDA is doing the best it can, it simply can’t see the future clearly enough to pre-empt manufacturers from litigation,” he said. “The (court) system represents one of the key defense mechanisms that individuals have if a manufacturer has not made the risks of a product clear to the public.”

The medical editors joined 47 state attorneys general and two former FDA commissioners, David Kestrel and Donald Kennedy, in supporting Levine’s position. Kestrel served in the administrations of former President Bill Clinton, a Democrat, and Republican President George H.W. Bush. Kennedy served in Democratic President Jimmy Carter’s administration.

The case is being closely watched because the Supreme Court ruled this year that manufacturers of FDA-approved medical devices were shielded from litigation in state courts.

However, David Vladeck, a lawyer representing Kessler and Kennedy, said the statute that applies to medical devices is different from the law that governs medications.

“The law in the (devices) case had a pre-emption provision,” said Vladeck. “Congress has never put a pre-emption provision in the Food and Drug Act.”

The Bush administration is supporting Wyeth’s position.

“FDA considers and approves specific labeling for a drug, and the drug manufacturer is generally barred from making unilateral changes to the FDA-approved labeling,” Solicitor General Paul D. Clement wrote in the administration’s brief.