Chicago Nursing Home Abuse Attorney Blog

Fraud is when someone intentionally deceives someone else, either to make money or to damage that person. Legally, fraud can violate criminal laws, civil laws - or both. Most often, a person - or company - commits fraud to make money.

In keeping an eye on the care our loved ones get in nursing homes, we may not think about fraud. We want to make sure they are safe and well cared for. Our concern focuses on such things as cleanliness, competent caregivers and proper food. And while these things boil down to receiving value for the money we, Medicare or our insurance company are paying, this isn't usually what's on our minds.

Sometimes, however, circumstances open our eyes. Here's a situation that recently came to our attention that holds a lesson for us all.

A nursing home resident was changing doctors. The new doctor wanted, properly, a list of medicines she was taking. To the family's knowledge, she was receiving occasional aspirin but little in the way of continuing pills. However, when they asked the nursing home about her medicines, they received a list a dozen medicines long. They were surprised, of course, and shocked that the nursing home was billing all this to Medicare when their loved one wasn't receiving these treatments and, to their knowledge, didn't need them.

There are several possibilities.
• The patient may be getting all the medicine without the family knowing about it.
• She might need the medicine and not be getting it.
• The nursing home may have seen a way to make some extra money by taking advantage of her relative health: She doesn't need the medicine but why not claim the cost anyway? That's fraud, and the amount realized could be significant. After all, specialized pills can cost hundreds of dollars a month. There are ways to remedy this situation and you can start by discussing it with an attorney.

Keep in mind that your loved one is entitled to all this information, and that you should be aware of what medicines she or he is taking.

Keep in mind that you don't need to wait for a new doctor to ask.

And keep in mind that keeping everyone in the health care system honest can hold down costs to the benefit of us all.

Michael Kosner, President
The Kosner Firm Chtd.

The mother of a friend of ours is in a nursing home in a northern Chicago suburb. She's 95, and she doesn't always remember very well. She's reverted to her native Eastern European language for conversation but, all things considered, she's doing pretty well. Plus, she is blessed with caring and attentive sons who visit her regularly and look out for her well-being.

And that's a very good thing. It keeps her doctor and the nursing home alert.

While nothing serious is wrong, there are little problems and these offer some cautions about what to look for if you have a loved one in a nursing home.

Currently, this woman (let's call her Hannah) can't hear. The problem is ear wax, something easy enough to cure.

Hannah's son (let's call him Sam) says the problem has been building up for several weeks. He and his brother have asked the doctor several times to remove the wax. She's been reluctant, saying there wasn't a problem. She even told him recently that there's no problem. "I saw her yesterday and she heard me fine," Sam quotes the doctor as saying, "She even responded in English."

That would be fine, but Hannah hasn't responded to anything in English for more than a year.

And the day after the doctor says she talked with Hannah, Sam's brother called him to say her hearing was worse. "She can't hear at all," Sam's brother said. Perhaps the wax massed up overnight.

Finally, the doctor said she would remove the wax and set a date more than two weeks off for the sons to bring Hannah to her office. The brothers decided this was unacceptable and made arrangements with another doctor who would take care of the problem much sooner.

They're doing a good job of watching out for their mother.

As to the doctor, she was caring for Hannah before she went into the nursing home. In fact, though she is not employed by the home, she recommended it to the family and makes weekly rounds there to see her patients.

Now, however, she seems to have lost interest. In fact, Sam now realizes, there were signs of potential problems more than a year ago - red flags that might have suggested looking for a new doctor then.

Hannah developed bed sores - one on her heel and one on her back - and was hospitalized so they could be treated. They were relatively minor, healed and Hannah went back to the home.

The doctor, however, had a different idea; she suggested hospice.

"What was that all about?" Sam wonders. "Sure, my mom is 95, but the bed sores weren't serious. She wasn't ready to die, and here we are a year later and she's doing fine. The doctor is a nice woman, but she was willing to give up on her."

And now, over a simple matter of removing ear wax, the doctor still seems to be saying, "Why bother?"

That's not something we want to hear when it comes to someone we care about.

Michael Kosner, President
The Kosner Firm Chtd.

"We checked out the home and the rating on it when we put her in," Peggy Kennedy reportedly said after her mother, Sarah Wentworth, froze to death in February in the courtyard of her nursing home, The Arbor, in Itasca.

When the family originally checked, however, The Arbor didn't have the 22 violations uncovered in its last annual inspection by Illinois' Department of Public Health. It didn't have the two-star overall rating (five is the best, one the worst) rating that Medicare inspectors now give it. (There are private websites, like Member of the Family , which compile rankings for nursing homes across the country.)

Sarah's tragic story underlines the need to keep checking, but it doesn't solve the dilemma of what to do if a nursing home's conditions deteriorate. As the daughter of another Arbor resident noted in talking with the media, "It's difficult because at this stage my mom's 89 years old. It's very hard. It's hard to move them."

Hard but certainly not impossible - and sometimes necessary. IDPH regulates, licenses and - at least once a year - inspects the 1,200 long-term care facilities it's responsible for in the state. It reports conducting some 10,000 surveys annually, for licensing, complaints and reinspection. It also helps the U.S. Centers for Medicare and Medicaid Services certify the facilities for government payments. Every facility must meet the standards in the Illinois Nursing Home Care Act.

If a nursing home doesn't measure up, you can certainly find out.

Plus you can help improve a nursing home where your loved one lives by keeping track of conditions when you visit. Medicare's website provides a four-page checklist you can use to evaluate a nursing home - and to keep evaluating it. It guides you to be aware of the appearance of residents, their rooms and common spaces, how residents and staff get along with each other, the quality of food and activities, and the safeguards and medical care the home provides.

If the nursing home falls short, and won't listen to you when you raise issues, you can call the Department of Public Health's 24/7 Nursing Home Hotline (800-252-4343). It receives nearly 19,000 calls a year leading to more than 5,000 complaints

And then, if no-one listens, you can contact an attorney who specializes in nursing home law. We can go to bat for you with the nursing home. After all, preventing neglect and abuse is more important than punishing someone after it's too late to help your loved one.

Michael Kosner, President
The Kosner Firm Chtd.

Clearly, when Sarah Wentworth triggered an alarm by walking out the door of Arbor of Itasca into the frigid night and no-one responded, there was negligence. We know that the nurse's assistant on duty has been found criminally guilty, but does all the guilt lie on her? No-one else faced criminal charges but that doesn't mean no-one else was negligent. Indeed, a civil suit for wrongful death has been placed against the nursing home.

The sequence of events that night in February raises many questions, a number of which involve the nursing home. The assistant, Heidi Leon, was 23 and accounts suggest she was alone, watching TV, when the alarm sounded. That seems to have been a lot of responsibility for a young nursing assistant. Was she alone and, if so, why? Where was a nurse she was assigned to, or someone else with experience? Did she think the alarm was caused by a co-worker stepping outside that door to smoke, as some often did? Didn't Arbor have rules about those kinds of thing? If it didn't, why not? If it did, why weren't they followed?

Evidence in the criminal case shows the nursing home knew that Sarah might wander. She was fitted with an electronic ankle bracelet for that reason. Why wasn't that bracelet being monitored? And why did no one check on her?

Sarah was outside for about five hours before her body was found. She undoubtedly suffered as she froze to death, particularly after she had fallen and been unable to get up. Evidence showed she crawled about 15 feet toward the door. Perhaps she realized she would die. One of her daughters, Catherine Wentworth Shain, said her mother was confronted by her worst fear: being alone and cold.

And when Sarah was found, some reports said, Ms. Leon and co-workers brought her body inside and attempted to make it look as if she hadn't left her bed. At that point, the nurse's assistant was not alone.

As DuPage County State's Attorney Joseph Birkett is quoted as saying, "If you're hired in a professional capacity and you're given duties and you're trained, you're expected to carry out those duties." This can as easily be asked about the nursing home as about the nurse's assistant. Was something wrong with the assistant's training?

Then there are questions about the home, itself. Had it corrected any of 22 violations that were reportedly uncovered during the last annual inspection by the state? Had it corrected the much-below-average conditions that led federal overseers to give Arbor a one-star rating out of a possible five?

How was the home laid out? Where was the nursing station? Where was the TV? Above all, how could Sarah have walked down the hall to the door without being seen?

Catherine Shain told the judge at Ms. Leon's sentencing that "we entrusted our mother to the Arbor staff, but she was left alone to die alone in the cold. Her will to survive was overcome by the bitter cold, and she suffered a lonely and painful death."

The evidence suggests that Arbor, itself, fits the elements of negligence we must prove in a personal injury case:
• That it had a duty to look out for Sarah.
• That it fell short of the standard expected in that type of situation.
• That its failure to meet the standard caused her death.
• That Sarah's death damaged her and her family.

This last point falls under the Illinois Survival Statute. It permits Sarah's family to bring a suit Sarah could have brought had she lived. It also recognizes the suffering and pain she had, and this could lead to a substantial damage award.

And while the suit can't return the mother to her children, perhaps it will send a signal to nursing homes in general, and encourage Arbor to make sure this doesn't happen again.

Michael Kosner, President
The Kosner Firm Chtd.

Negligence. That's when someone either does something reasonable people wouldn't do or doesn't do something they would. The key word is "reasonable." When this leads to someone being hurt - especially when the person who did (or did not) act is responsible for the injured person - this is clear cut grounds for a law suit.

Who is this reasonable person? Legally, he or she is someone who acts the way people believe someone should act when someone else is in danger.

Back in February, an 89-year-old nursing-home patient named Sarah Wentworth wandered out of her room at the Arbor of Itasca. At 2 a.m., she went out a door, triggering an alarm, and into a courtyard. She had Alzheimer's Disease and wore an electronic ankle bracelet. The temperature was near zero. Five hours later, Sarah was found in that courtyard, about 85 feet from the door, frozen to death. She had apparently fallen and been injured so she could not have walked back inside.

Heidi Leon, the 23-year-old nurse's assistant on duty, was watching television when the door alarm sounded. She turned the alarm off and returned to her show. Two weeks ago, in pleading guilty to criminal charges, Ms. Leon apologized to Sarah's three daughters and their families. She was sentenced to six months in jail - the time she'd already served - and put on probation for another 2-½ years. The daughters, while saying they believe Ms. Leon's remorse is real, felt the sentence should have been harsher. DuPage County State's Attorney Joseph Birkett, however, said the sentence was the stiffest warranted by the facts of the case and the assistant's lack of a criminal record.

Those, of course, are major factors in the criminal case, where the goal is punishment, not restoring balance for people - like Sarah's family - who were injured. That the assistant was clearly negligent in terms of what a reasonable person should have done, and even further off base given her responsibility to her elderly charge, didn't figure heavily into a criminal decision. This negligence will, however, weigh heavily in the civil wrongful death case that has already been filed by Sarah's family against the Arbor. More about that in our next post.

Michael Kosner, President
The Kosner Firm Chtd.

Nursing homes. As the number of seniors grows, so does the need for reliable, caring places where they can get the care they need to live with dignity and comfort when their bodies no longer are able.

Certainly, there are competent nursing homes - and the website for my Chicago nursing home abuse law practice includes information on what to look for when you're choosing one. But there are plenty of nursing homes that cut corners and hire aides at minimum wage just so there are bodies around. There are plenty of homes where caregivers don't care. There are plenty where there is abuse, both physical and mental. And that is not right. That is not fair to the residents in the homes, to you - their families - or to God.

When we place a loved one in a nursing home, it is often because we have no other choice. We try to make sure they have responsive care; that the homes fulfill the guidelines in the Illinois and federal laws that set out requirements for such facilities. But our responsibility doesn't stop there. After they are in a home, we need to know what to do to make sure they are comfortable. We must actively participate to keep care at an appropriate level. And, sometimes, we need legal help to keep a nursing home honest or to punish them for failing.

I believe in keeping caregivers honest, and that information and the courts are the way to enforce our reasonable expectations that they care. That's why I've chosen to develop this blog. Other representatives of The Kosner Firm and I will be writing regularly about nursing home abuse - about cases that serve as examples of things to look for and about what you can do to safeguard your loved ones and maintain your own peace of mind.

This will provide information, and you can go to the frequently asked questions at KosnerLaw.com or use this site if you have questions. And if you think you need the courts, we can help with that, too.

Michael Kosner, President
The Kosner Firm Chtd.