Nursing Home Negligence Lawyers

Norfolk, Newport News, and Roanoke, Virginia

 

NEWSLETTERS

Nursing Home Health: A Diagnosis

Safety, care violations
widespread in region

Staffing and money are critical, but too often fall short

Continued..

 

Sentara Nursing Center in Norfolk has been cited for 62 violations of government healthcare standards over the past three years, more than any other nursing home in South Hampton Roads. Three of those were cases of "actual harm" to patients - one of the most serious violations.

 

Several local nursing homes have been sued for patient neglect or abuse. Yet government regulators allow poorly performing nursing homes to continue operating because, they say, closing them would traumatize their residents and possibly leave them with nowhere else to go.

 

Most of the shortcomings of Virginia nursing homes can be traced to inadequate staffing, poor funding by the state, and the lack of any minimum legal standard for the amount of nursing care each patient must receive.

 

Virginia ranks near the bottom among states in the amount it contributes to Medicaid, the federal-state medical program for low-income people, which is the primary source of payment to nursing homes. Low Medicaid payments translate into low pay and high turnover for the nurse aides who provide most of the patient care. Some nurse aides complain of having to care for as many as three dozen patients in one night shift. State inspectors have found up to 60 patients being cared for by a single nurse and an aide.

 

Nursing-home patients need, on average, about four hours of care daily, according to a federal study. Recognizing this, most states have set minimum staffing levels. Virginia is among only 13 states that have not.

 

Moreover, because Virginia restricts Medicaid coverage to the most frail patients, it has the sickest nursing-home population in the country. That means nursing homes in Virginia must meet the greatest demand for services in the nation with one of the smallest pots of government money.

 

These and other problems with nursing homes could multiply as the bulk of the huge baby-boom generation moves into its retirement years. That has some in Virginia worried and calling for nursing-home reform. Yet, Virginia lawmakers continue to under fund nursing homes and refuse to pass legal reforms requiring better care.

 

"We're going to have more abuse, more neglect, more bedsores, because we don't have the staff we need to take care of people," said state Sen. Leslie Byrne, D-Fairfax, who sponsored one of two unsuccessful nursing-home staffing bills in this year's General Assembly. "We're dumping millions of dollars into nursing homes and we're not getting what we're paying for. We're not getting good care."

 

Skimpy staffing

Nursing-home operators disagree with assessments like Byrne's. Despite staffing and funding shortages, they say that most patients get high-quality, caring treatment.

 

"There are a few negative stories that can taint the industry," said Mary Blunt, president of Sentara Life Care Corp., which operates seven nursing homes in Hampton Roads. "But there's a lot of good work that's being done in long-term care today."

Even some of the industry's harshest critics would agree, to a point.

 

"Generally, you have good-hearted people working in nursing homes who want to provide good care," said Richard Aufenger, a Norfolk lawyer who has brought lawsuits against several local nursing homes, alleging patient neglect and abuse.

 

"The root of evil is lack of staffing," added Carlton Bennett, a Virginia Beach lawyer who handles many similar cases.

 

A study conducted by the U.S. Department of Health and Human Services in 2001 supports this view. It found "strong and compelling evidence of the relationship between staffing ratios and quality of nursing home care."

 

Letha Claude says she experienced that firsthand after placing her mother, Maybelle Lassiter, in SunBridge Care and Rehabilitation for Chesapeake, a nursing home on George Washington Highway, in 2000. Lassiter, a mother of five, was only 56.

 

On Oct. 26, 2001, Claude said, she got a phone call from a funeral director asking permission to pick up the body. That's how she found out that her mother had died.

Three months later, two nurses who had worked at SunBridge came to Claude with more news. There had been two hospitalizations that no one had told the family about.

 

Most disturbing was what they told Claude about her mother's last hospital visit, a month before she died. Nurses there reported finding maggots - the larval stage of flies - embedded in her mouth, according to nurses' notes in her medical records.

 

"I was shocked," Claude said. "I went to the nursing home and asked them about it, and it was as if they didn't care."

 

Nursing-home staffers do care, industry advocates say. But their work is physically demanding and emotionally draining.

 

The bulk of the one-on-one patient care is done by nurse aides, who perform a myriad of chores. They help patients get bathed and dressed. They serve them their meals and, when necessary, spoon-feed them. They help them to the bathroom or, if they are incontinent, keep them changed and dry. They help them in and out of wheelchairs - heavy lifting that sometimes requires the help of a second aide or a mechanical lift. They must reposition immobile, bedridden patients at least every two hours to prevent bedsores.

 

Workplace injuries and illnesses occur in nursing and personal-care facilities at nearly three times the rate of private industry as a whole, according to the U.S. Occupational Safety and Health Administration.

 

Studies have found annual turnover rates among nurse aides ranging from 38 percent to 143 percent. In Hampton Roads they earn $7 to $10 an hour - comparable to telemarketing sales representatives.

 

To work in Virginia, nurse aides must be certified by the state Board of Nursing. They are required to receive 120 hours of training in such areas as personal-care skills, emergency procedures, client rights and conflict management.

 

Andrea McLaurin of Suffolk has been a certified nurse aide, or CAN, or 10 years and has worked in six local nursing homes, which is not atypical. "A lot of times, we have so many patients per CAN that you can't give the quality of care that the patient needs," McLaurin said.

 

The ideal workload for an aide is about eight patients per shift, she said. "That allows you to get to know your patient. You know when that patient is sick, when a patient is not being his or her self, so you can give adequate care - not just bathing and feeding but nail care and hair care. You've got time to focus on your patients."

 

Sen. Byrne's staffing bill would have required nursing homes to provide one nurse aide for every five residents during the day and one for every 10 residents at night.

 

McLaurin said she has been assigned to care for as many as 20 patients on the day shift and up to 35 at night.

 

"If you complain, it really doesn't make a difference because they feel that a CNA can be replaced," she said.

 

State spending near the bottom

Lack of money is often pointed to as the principal cause of staffing shortages and other problems plaguing nursing homes.

 

In Virginia that seems especially true.

 

Nearly 70 percent of nursing-home residents are covered by Medicaid. Another 10 percent are covered by Medicare, the federal health-insurance program for the elderly.

 

Virginia is one of the least generous states when it comes to Medicaid funding. It ranked 47th in per capita Medicaid nursing-home spending in 2001.

 

Virginia's average daily reimbursement rate is $102.50. Rates in neighboring states range from $108 in North Carolina to $162.49 in Maryland.

 

At the current reimbursement rate, Virginia nursing homes lose, on average, $10 to $12 a day for each Medicaid patient they take, according to the Virginia Health Care Association, a Richmond-based industry group.

 

Without heftier state contributions, nursing homes can't afford to provide the level of patient care recommended by industry experts, government officials and patient advocates say.

 

"Common sense says that if we're that low nationally in Medicaid reimbursement, we're probably not able to deliver the quality of care that we want to deliver," said Joani Latimer, the state's long-term-care ombudsman.

 

The average nursing-home patient needs a minimum of 4.1 hours of nursing care per day to avoid such common problems as bedsores, weight loss and loss of bodily functions, the 2001 federal study concluded. That ratio includes 0.55 of an hour of care by registered nurses, 1.15 hours by licensed practical nurses and 2.4 hours by nurse aides.

 

Three-quarters of nursing homes in South Hampton Roads don't meet that standard, based on federal government data. Actually more homes than that may fall short, because the figures are self-reported by the homes and are not audited by the government.

 

Some homes, like Sentara Nursing Center in Chesapeake, provide as little as 2.2 hours of care per patient per day, the data show. The ratios range as high as 11.9 hours per day at Seaside, the Health Center at Atlantic Shores, a small facility in Virginia Beach.

 

At last count, 37 states had established minimum legal staffing standards, but Virginia has not seen fit to join them. Legislation to do so has never made it out of committee.

 

"We have malpractice going on regularly in nursing homes where patients aren't receiving the services they need because the staffing isn't there," said Del. Vivian Watts, D-Fairfax, sponsor of another unsuccessful nursing-home staffing measure in this year's General Assembly. "The reason the staffing isn't there comes right back on the doorstep of the state."

 

Watts' bill would have required Virginia nursing homes to provide at least 3.5 hours of nursing care per patient per day, which would have left the state still below the minimal level recommended by the federal government. The annual cost to the state of implementing the measure was estimated at $42 million.

 

But the state's funding trend for nursing homes is down - not up.

 

Gov. Mark R. Warner and the General Assembly, facing a multi-billion-dollar budget shortfall this year, trimmed $29 million from anticipated nursing-home payments for fiscal 2004 - about 5 percent of the $610 million total.

 

"Because we are so woefully reimbursed, we struggle all the time to hire enough qualified people to take care of the patient load that we have in the nursing homes," said Stephen Morrisette, president of the Virginia Health Care Association. "We are always working short."

 

Further complicating nursing homes' staffing woes is a nation-wide nurse shortage that is affecting health-care providers across the board. The Virginia Nurses Association predicts that within six years, the demand for nurses will exceed the supply in Virginia by 30 percent.

 

Without aggressive reforms, problems with Virginia nursing homes are expected to swell with the state's aging population, Morrisette and other advocates for the elderly say.

 

Statewide 27,000 Virginians live in nursing homes. South Hampton Roads has about 4,000 nursing-home residents. By 2020, Virginia's over-65 population is projected to grow by 75 percent, which means South Hampton Roads could have 7,000 elderly needing nursing-home care by then.

 

Patients must often wait weeks to get into a facility. Costs range upward from $35,000 a year, the rock-bottom level for a Medicaid patient. At the pricier facilities, like Seaside at Atlantic Shores, care can top $60,000 a year. Most residents at Seaside pay their own way; the facility does not take Medicaid patients.

 

The scarcity of accommodations and the trauma of moving elderly residents leaves regulatory agencies reluctant to close down nursing homes. No Virginia nursing home has ever been shuttered by regulators.

 

Struggling operators go bankrupt

Financial pressures have driven some nursing-home operators into bankruptcy. A case in point is Albuquerque, N.M.-based Sun Healthcare Group, operator of the SunBridge facility in Chesapeake where Maybelle Lassiter died.

 

That home has been cited for 50 violations of government health-care standards over the past three years, three of them serious.

 

An inspection in 2000 found pervasive urine odors in the building, a failure to prevent bedsores, and indications of insufficient staffing. One some night shifts, the inspectors found, one nurse and one aide were trying to care for as many as 60 patients.

 

The inspectors also found a pattern of residents being subjected to rude remarks, rough handling and possible physical abuse by nurse aides.

 

The most recent state inspection, in March, found SunBridge earning its best marks in three years. Melissa Tommaso, a corporate spokeswoman, attributed the home's progress to a new management team.

 

"We're proud of the improvements they've made," she said.

 

Sun was one of several national chains that expanded rapidly in the 1990s, attracted by the flow of Medicare and Medicaid money, but got into financial trouble when Congress began clamping down on Medicare reimbursements in 1997. Sun filed for Chapter 11 bankruptcy protection in 1999. The company reported a net loss of $69 million on $2.1 billion in revenues in 2001.

 

As it worked to emerge from bankruptcy, Sun divested itself of nearly 100 nursing homes in 2000 and 2001. One of them, now known as Virginia Shores Health Care Center, is on Lynn Shores Drive in Virginia Beach.

 

That facility has continued to have problems since the spin off from Sun. The subsequent operator, Atlanta-based Health Prime Inc., recently terminated its lease, which briefly put the home at risk of closure in February until Rocky Mount, N.C.-based Autumn Corp., operator of four Autumn Care homes in the area, agreed to take it over.

 

Operators of the facility did not respond to a request for comment.

 

State inspectors have found 58 violations of health-care standards at Virginia Shores over the past three years. An inspection in 2000 found that two-thirds of tube-fed patients surveyed were failing to get the amount of food and fluids that their doctors had ordered. Some were getting less than a third of nutrients ordered, according to inspection records.

That same inspection found that the staff "failed to investigate, monitor, and track the progress and extent of a significant resident and staff tuberculosis exposure and scabies infestation." A nurse aide had been treated for active tuberculosis, but no residents were tested for TB until one was hospitalized and diagnosed with the highly contagious disease. Another 15 residents came down with scabies, a contagious skin disease caused by a parasitic mite.

 

The facility's 2002 inspection wasn't much better. One resident, a 66-year-old woman with hepatitis, had fallen out of bed, causing a head wound that required 17 staples to close. The bed was found to have a side rail that didn't latch properly. The morning after the accident, an inspector found dried blood still spattered on the floor, the bedside table and the privacy curtain between the contagious resident's bed and her roommate's.

 

Care for profits

For all the financial pressures facing operators, it is also true that some of the worst nursing homes in the industry are raking in some of the biggest profits.

 

Nearly two-thirds of Virginia nursing homes are operated by for-profit companies. In South Hampton Roads, 23 of 35 homes are for-profit.

 

PROFITS: Emphasis can cut into care

At least one study has found a correlation between profits and poor care. The Joint Legislative Audit and Review Commission, the General Assembly's watchdog arm, found in 2000 that for-profit nursing homes were more likely to be cited for substandard care and patient abuse than nonprofit homes. There was also a size correlation: Larger homes were more likely to incur violations than smaller ones.

 

In general JLARC found, the more a home spends on providing care, the higher the quality. On average, government reimbursements covered 98 percent of for-profit homes' costs, but only 83 percent of nonprofit homes' costs. The implication: To protect their bottom line, for-profit companies choose to keep their expenses in line with their reimbursements.

 

"I don't think the financial situation is as bleak as the companies claim," said Sherry Byrd, a registered nurse who has worked in the industry and now investigates nursing-home cases for the Norfolk law firm Kalfus & Nachman.

 

Kindred Healthcare, a Louisville, KY-based company that operates 305 nursing homes nationally and four in South Hampton Roads, earned an average $1 million profit per facility in 2001.

 

Yet, its Harbour Pointe Medical & Rehabilitation Center in Norfolk was cited for 35 violations of health-quality standards in one 12-month inspection period - more than any other nursing home in Virginia. The average for Virginia homes during that period was four violations.

 

Nader Baheri placed his wife, Mary Taylor, in the facility on Hampton Boulevard in Ghent after she was injured in a 1997 auto accident. The crash caused brain damage that made her prone to seizures.

 

In a lawsuit filed in 2001, Baheri described what happened as he sat with his wife in her room on Aug. 30, 1997.

 

"I witnessed the continuous seizure of my wife, which lasted approximately 1½ hours," he is quoted as saying in a sworn statement filed in court. "My wife turned dark blue. Bubbles were coming from her mouth, and she was soaking wet. I pleaded with the nurses to do something to stop the seizure, screaming at them: 'Call 911 - this is an emergency.'"

 

Baheri said the nurses responded that they would call the facility's medical director and "everything would be okay." He alleged in his lawsuit that his wife suffered further serious, permanent brain damage and requires round-the-clock care.

 

Baheri, who was driven into bankruptcy by his wife's medical bills in 1999, now cares for her at home. Kindred settled the lawsuit for $110,000.

 

State inspections at the Harbour Pointe facility have turned up repeated instances of patient injuries, bedsores and medication errors. Here are some examples of the inspectors' findings, recorded in summary statements of deficiencies:

 

· A 77-year-old woman fell out of bed causing bruises that enveloped her face, neck, chest, arms and shoulders. Three days later, after she complained of severe pain, X-rays revealed a broken collarbone. Her family sued the nursing home and won a settlement which wasn't made public.

· A 70-year-old woman, while being fed through a tube, was left lying nearly flat, causing her to breathe feeding formula into her airway. She was hospitalized with aspiration pneumonia and died two days later. The nurse on duty told the inspector she felt "overwhelmed with the nursing are responsibility for 43 residents," 11 of them tube-fed, with only one aide to help her.

· An 83-year-old woman was hospitalized with an unexplained broken leg and was found to have a severe bedsore on her lower back. Four months later the sore was saucer-size and had deepened to the bone. As the inspector watched, a nurse began to change the dressing without thoroughly cleaning the patient, who was incontinent. As she packed the wound, she repeatedly contaminated it with feces until the horrified inspector asked her to stop.

· The staff failed to adequately monitor the medications of nearly half the patients surveyed during one inspection. When a diabetic' blood sugar dropped dangerously low, his doctor was not notified and the man died. A woman's anti-psychotic prescription went unfilled for seven days and she suffered paranoid delusions. Another woman was given a double dose of a sleep-inducing drug and died the next day.

 

In the past three years, federal regulators have imposed three cutoffs of Medicaid and Medicare payments for new admissions at the Harbour Pointe facility and levied $176,500 in civil penalties for violations of quality standards.

 

In a written statement, Kindred said Harbour Pointe is now in compliance with Medicare participation requirements. "Resident care and safety is our number one concern," the company said.

 

Kindred, which filed for bankruptcy protection in 1999, also faced charges of inadequate health care and Medicare fraud at the corporate level, which it settled for $219 million paid to the government.

 

Kindred's chief executive officer, Edward L. Kuntz, received $10.1 million in salary, stock options and other compensation in 2001.

 

Nonprofit's have problems, too

Quality-of-care problems aren't confined to profit-making homes, however.

 

Two of the six local homes with the most violations of government health-care standards in the past three years are operated by Sentara Life Care, a subsidiary of the Norfolk-based nonprofit health conglomerate Sentara Healthcare.

 

Sentara's Norfolk nursing center incurred 62 violations and its Chesapeake facility, 45.

Even though they are nonprofit, they are big business. Sentara Life Care's seven nursing homes and three assisted-living facilities produced revenues of $41.6 million in 2000. Blunt, the company's president, earned $231,796 in salary and benefits. David Bernd, CEO of the parent company, earned $1.2 million.

 

The Sentara system has received national accolades for quality care. In 2001, for example, it was named the top integrated health network in the United States by SMG Marketing Group, a Chicago-based health-care and information-marketing company.

 

But the inspection records demonstrate that the company is not immune to the challenges facing the nursing-home industry.

 

Inspections at Sentara's Norfolk center on Newtown Road have found medication errors and avoidable bedsores. An inspection in 2001 found that the Sentara staff had failed to provide proper care for 12 of 14 residents in a survey group. One man was served a meal while soaked with urine. When a woman sought help after an incontinent episode, the staff repeatedly turned off her call light without answering it.

 

Another call light went unanswered for an entire shift, leaving the resident wet with urine all night, inspection records show.

 

Blunt, Sentara Life Care's president, says one reason for Sentara's past difficulties is that its nursing homes take many patients from Sentara's acute-care hospitals.

 

Often, Blunt says, those patients are sicker than the typical nursing-home resident and their care is more demanding and costly.

 

"We take on some of the most difficult patients," she said.

 

Some Sentara homes have fared better on state inspections. The Sentara-Windemere facility on Old Donation Parkway in Virginia Beach has incurred only four violations in three years - one of the best records in the area.

 

As health-care costs continue to rise, hospitals are discharging patients earlier, and nursing homes are called upon to take up the slack.

 

"Nursing homes aren't the nursing homes they were 10 years ago," Blunt said. "In many cases, they're more like the hospitals of 10 years ago. It's a very different level of care."

 

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