Chicago Nursing Home Abuse Attorney Blog

When hunting for a place to spend their retirements, people tend to look for a degree of luxury. Consider, for example, The Park at Vernon Hills, a retirement community featuring independent and assisted living. It's not a nursing home, but concerns are similar.

Among the amenities The Park advertises as part of its carefree resort-style senior living is "the largest residential rain forest in the world - larger than a football field and more than six stories tall! It is a beautiful site to behold, maintained at a constant 72 degrees and 50 percent humidity. Residents walk along the winding quarter-mile walking path and see the spa, pool, café and more than 5,000 trees and shrubs."

We have no reason to believe The Park is anything but a responsible, caring facility, but even the best can suffer from the unexpected, reminding us again of the importance of vigilance - and the law of unintended consequences. In this case, the unintended seems to be Legionnaire's Disease.

The disease has a mysterious history but is now generally tied to bacteria that can survive in warm, moist, air-conditioning systems of large buildings, including hospitals - and apparently in artificial rain forests. It is spread by inhaling water mist, not by direct contact between individuals.

The Lake County Health Department and the Illinois Department of Public Health are investigating five cases - including two resulting in death - of the disease at The Park. The departments say that, so far, the outbreak is limited to that community. They have targeted the rain forest atrium as a possible source of the bacteria.

The Park has also hired an independent contractor to investigate - and has shut down the rain forest.

"We're taking every precaution and doing everything we can," Jane Woloson, executive director at The Park told the Lake County News Sun.

Michael Kosner, President
The Kosner Firm Chtd.

I've written about negligence as someone doing something unreasonable. While neglect may be planned, in practice it is often a failure to do something. Abuse, on the other hand, generally involves someone acting to hurt someone else. It's a broader area than neglect and some kinds of neglect fall within its definition.

Abuse is when someone harms someone else. This damage can be physical or emotional. Nursing homes have become centers of abuse because the people entrusted to them cannot defend themselves and the homes may not be able to control underpaid and uncaring employees.

How many of us can relate stories like that of the man, suffering early Alzheimer's, whose wife resolves that, though he is in a nursing home, she will do everything she can to preserve his dignity. She provides him with nice clothes and makes sure he has pictures of his kids and a few dollars in his pocket, only to find that everything with any potential value disappears within days, if not hours. Theft is rampant and, in the end, all she can do is bring him clothes from the Salvation Army Thrift Store and try to control her frustration and indignation.

Then there are stories of sympathetic nurses or aides who warn relatives of persons entering a nursing home or a hospital to take home anything they have of value because otherwise it will surely disappear.

We even know of a computer whiz who, after finding that his mother's belongings were gone from her nursing home room, rigged hidden cameras and caught the culprits - or at least some of them.

Illinois, as well as the other 49 states, have enacted laws that make elder abuse felonies; they make physical abuse and financial exploitation crimes.

Physical abuse may include beatings, sexual attacks and being forced to swallow food or medicine. Here is where neglect can fall in, when a caretaker who doesn't care fails to feed or dress patients, or to keep them clean.

Mental abuse may occur when someone humiliates, insults or threatens patients, or denies them the dignity of making even simple personal choices, such as whether to get out of bed or when and what to eat.

Financial abuse can be theft of belongings or forcing patients to turn over funds or include someone in their wills.

Why is there nursing home abuse? Understaffing and using under-qualified and poorly paid employees, high-pressure work environments and a lack of proper training have all been blamed. Provisions in the federal Nursing Home Reform Act lay out expectations and requirements for every home that receives federal funds; these facilities are monitored by Medicare as well as state agencies.

Regulators, however, can only do so much, as evidenced by nursing home ratings that drop from above average to dangerously below average from one annual inspection to the next. Inspectors need the support of family members who are looking after a loved one, and family members may have to turn to an attorney to sort through the complications and make sure the law is enforced.

Staying alert may be difficult, but successfully fighting nursing home abuse can at least provide some satisfaction in caring for a loved one - which is, at best, difficult.

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.