Nursing Home Neglect 2015 - The Suffolk County Bar Association

Transcription

SUFFOLK ACADEMY OF LAW
The Educational Arm of the Suffolk County Bar Association
560 Wheeler Road, Hauppauge, NY 11788
(631) 234-5588
EVALUATING NURSING
HOME NEGLECT CASES
PRESENTERS
David Grossman, Esq.
Keith L. Kaplan, Esq.
Alexander Weingarten, MD
Special Thanks to Our Sponsor:
Barbara McFadden
McFadden & Associates Healthcare
Consultants, LLC
December 2, 2015
SCBA Center - Hauppauge, NY
David Grossman & Assoc PLLC
1 Village Plaza Suite 401
Kings Park, NY 11754
631.352.0146 t
631.352.0147 f
"We Specialize In Winning"
www.lawyer-nursinghomeabuse.com BIO David Grossman graduated from Touro College Jacob D. Fuchsberg Law Center in 1994 and Cum Laude from SUNY at Stony Brook with a BA in Philosophy in 1991. After working 2 years as a Public Defender for the Legal Aid Society in Nassau County he began practicing predominantly in the area of personal injury litigation. Until 2001 Mr. Grossman regularly represented plaintiffs at trial in the areas of labor law, medical malpractice and general negligence. Since 2001 he has almost completely devoted his practice to representing residents of nursing homes who have been deprived of their rights. Mr. Grossman has enjoyed using technology to aid in bringing complex cases to trial and has had multiple jury verdicts in the millions of dollars. Some Trial Considerations in a PHL 2801-d Action and Use of Technology In a Complex Medical Trial David Grossman
1 Village Plaza Suite 401
Kings Park, NY 11754
631.352.0146 t
631.352.0147 f
www.lawyer-nursinghomeabuse.com 1.
getting a call about neglect a.
who is the caller? standing issues b.
what type of facility (nursing home, assisted living, hospital, home health aid) c.
understanding the SOL (Zeides v. Hebrew Home for Aged at Riverdale, 300 AD2d 178 (1 st Dept 2002)) d.
2.
typical complaints - range of issues Know The Regulations for Nursing Home Cases a.
b.
NY PHL 2801-d i.
Minimum damages ii.
Attorney’s fees discretionary iii.
Punitive damages CFR and NYCRR - different but the same - ex. 42 CFR 483.25 and 10 NYCRR 415.12 -- use the web -- http://w3.health.state.ny.us/dbspace/NYCRR10.nsf/0/8525652c006
80c3e8525652c00498b7d 3.
some light investigation a.
b.
pictures i.
do what you have to ii.
the easy way and the hard way pre-suit medicals i.
let the client help ii.
save costs on speculative claims iii.
c.
1.
have client pay 2.
pre-action OSC 3.
don’t need LOA 4.
scanning call Dr. W Get a handle on the meds i.
Organizing records early on - flow chart and follow up - 24 hour rule ii.
48 CFR 483.75 ( l )(1) The facility must maintain clinical records on each patient iii.
42 CFR 483.10(a)(2)(i) and (ii) Facility must give access to records within 24 hours of request, and facility must provide copies of the records to the resident or his authorized representative within 2 business days iv.
10 NYCRR 415.22 and 10NYCRR 415.3(c) (1) (iv) Facility must turn over the records to the resident or his authorized representative within 24 hours and copy said record within 2 days, for its own cost or .75 cents per page, whichever is less 4.
v.
Big boxes of rubber banded thousands of pages vi.
Tabbed binders – sorting guide vii.
Scanned records viii.
Tabbed scanned records Claim letter and settlements ZEIDES v. HEBREW HOME FOR THE AGED AT RIVERD...
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ZEIDES v. HEBREW HOME FOR THE AGED AT RIVERD...
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Citing Case
ZEIDES v. HEBREW HOME FOR THE AGED AT RIVERDALE, INC.
300 A.D.2d 178 (2002)
753 N.Y.S.2d 450
LILLIAN ZEIDES, Respondent, v. HEBREW HOME FOR THE AGED AT RIVERDALE,
INC., Appellant, et al., Defendant.
Appellate Division of the Supreme Court of the State of New York, First Department.
Decided December 24, 2002.
Concur — Ellerin, Rubin and Gonzalez, JJ.
The complaint in this action asserts causes of action for violations of the Public Health
Law, ordinary negligence and wrongful death. The statutory cause of action recites that it
is
[300 A.D.2d 179]
brought pursuant to Public Health Law § 2801-d, which confers a private right of action on
a patient in a nursing home for injuries sustained as the result of the deprivation of
specified rights (§ 2801-d [1]). Relief is predicated on Public Health Law § 2803-c (3) (e),
specifically deprivation of "the right to receive adequate and appropriate medical care,"
and alleges that defendants violated 10 NYCRR 415.12 (c) (1) by failing to prevent the
development of pressure sores and 10 NYCRR 415.12 (i) (2) by failing to maintain
adequate nutrition. As such, it states a cognizable cause of action under the statute
(Goldberg v Plaza Nursing Home Comp., 222 A.D.2d 1082, 1084 [statute affords remedy
to patients denied rights enumerated in Public Health Law § 2803-c (3)]; see also
Begandy v Richardson, 134 Misc.2d 357, 361-362).
The basis of the motion to dismiss the complaint (CPLR 3212) by defendant Hebrew
Home for the Aged is the contention that plaintiff's action was commenced more than 2½
years after plaintiff's decedent was discharged from defendant's facility and is thus barred
by the limitation of time for instituting a medical malpractice action (CPLR 214-a). The
nursing home neither acknowledges nor addresses either the statutory cause of action or
the complaint's allegations of ordinary negligence, merely asserting that the action sounds
in medical malpractice and should be dismissed as untimely.
As plaintiff points out in her affirmation in opposition, by definition, a nursing home offers
health-related services, lodging, board and physical care in addition to professional
nursing care (Public Health Law § 2801 [2], [3], [4] [b]). Article 28 of the Public Health Law
contains nothing that would indicate an intent to equate its private right of action with one
for either medical malpractice or ordinary negligence (see Begandy, 134 Misc 2d at
360-361). The statutory basis of liability is neither deviation from accepted standards of
medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient
caused by the deprivation of a right conferred by contract, statute, regulation, code or
rule, subject to the defense that the "facility exercised all care reasonably necessary to
prevent and limit the deprivation and injury to the patient" (Public Health Law § 2801-d [1],
[2]). As a "liability * * * created or imposed by statute," plaintiff's statutory cause of action
is governed by the three-year period of limitations of CPLR 214 (2).
The gravamen of defendant's defense is that "this is, exclusively, a medical malpractice
action and was brought after the 2½-year statute of limitations provided by CPLR §
214-a."
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Public Health
§
2801-d.
Private
actions
by
patients
of residential health care
facilities. 1. Any residential health care facility that deprives any
patient of said facility of any right or benefit, as hereinafter
defined, shall be liable to said patient for injuries suffered as a
result of said deprivation, except as hereinafter provided. For purposes
of this section a "right or benefit" of a patient of a residential
health care facility shall mean any right or benefit created or
established for the well-being of the patient by the terms of any
contract, by any state statute, code, rule or regulation or by any
applicable
federal
statute,
code,
noncompliance by said facility with
rule
or
regulation, where
such statute, code, rule or
regulation
has not been expressly authorized by the appropriate
governmental authority. No person who pleads and proves, as
an
affirmative defense, that the facility exercised all care reasonably
necessary to prevent and limit the deprivation and injury for which
liability is asserted shall be liable under this section. For the
purposes of this section, "injury" shall include, but not be limited to,
physical harm to a patient; emotional harm to a patient; death of a
patient; and financial loss to a patient.
2. Upon a finding that a patient has been deprived of a right or
benefit and that said patient has been injured as a result of said
deprivation, and unless there is a finding that the facility exercised
all care reasonably necessary to prevent and limit the deprivation and
injury to the patient, compensatory damages shall be assessed in an
amount sufficient to compensate such patient for such injury, but in no
event less than twenty-five percent of the daily per-patient rate of
payment established for the residential health care facility under
section twenty-eight hundred seven of this article or, in the case of a
residential health care facility not having such an established rate,
the average daily total charges per patient for said facility, for each
day that such injury exists. In addition, where the deprivation of any
such right or benefit is found to have been willful or in reckless
disregard of the lawful rights of the patient, punitive damages may be
assessed.
3. A patient residing in a residential health care facility may also
maintain an action pursuant to this section for any other type of
relief, including injunctive and declaratory relief, permitted by law.
4. Any damages recoverable pursuant to this section, including minimum
damages as provided by subdivision two of this section, may be recovered
in any action which a court may authorize to be brought as a class
action pursuant to article nine of the civil practice law and rules. The
remedies provided in this section are in addition to and cumulative with
any other remedies available to a patient, at law or in equity or by
administrative proceedings, including tort causes of action, and may be
granted regardless of whether such other remedies are available or are
sought. A violation of subdivision three of section twenty-eight hundred
three-c of this article is not a prerequisite for a claim under this
section. Exhaustion of any available administrative remedies shall not
be required prior to commencement of suit hereunder.
5. The amount of any damages recovered by a patient, in an action
brought pursuant to this section shall be exempt for purposes of
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determining initial or continuing eligibility for medical assistance
under title eleven of article five of the social services law and shall
neither be taken into consideration nor required to be applied toward
the payment or part payment of the cost of medical care or services
available under said title eleven.
6. If judgment in an action maintained under this section is rendered
in favor of the plaintiff, in its discretion the court may, if justice
requires, award attorneys' fees to the plaintiff based on the reasonable
value of legal services rendered and payable by the defendant.
7. Any waiver by a patient or his legal representative of the right to
commence an action under this section, whether oral or in writing, shall
be null and void and without legal force or effect.
8. Any party to an action brought under this section shall be entitled
to a trial by jury and any waiver of the right to a trial by a jury,
whether oral or in writing, prior to the commencement of an action,
shall be null and void, and without legal force or effect.
9. No insurance premium or part thereof paid by any residential health
care
facility which is attributable solely to insurance against
liability pursuant to this section shall be allowed as a reimbursable
cost for purposes of any proposed rate schedule for payments for
hospital or health-related service which the
commissioner
shall
determine and certify pursuant to section twenty-eight hundred seven of
this chapter.
10. a. No person shall discriminate against any patient of a
residential health care facility because such patient, or the patient's
legal representative, has brought or caused to be brought any action
pursuant to this section, or against any patient or employee of a
residential health care facility because such patient or employee has
given or provided or is to give or provide testimony or other evidence
for purposes of such action.
b. Any patient who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may, within
thirty days after such alleged violation occurs, file a complaint with
the commissioner. The commissioner shall investigate any such complaint,
and shall, if such complaint is deemed meritorious, serve upon the
administrator of the subject facility, in
his
capacity
as
a
representative of the facility, either by personal service or by
certified mail addressed to the administrator in care of the facility,
return receipt requested, a complaint stating the substance of the
alleged discrimination with reasonable particularity. A hearing shall be
conducted in accordance with section twelve-a of this chapter within
thirty days of the service of such complaint. The hearing officer shall
make a report of his findings to the commissioner, who, if he determines
that a violation of this subdivision has occurred, may grant whatever
relief is necessary and appropriate to remedy the violation, including,
but not limited to readmittance of patients wrongfully discharged. Any
such order of the commissioner shall be appealable by a proceeding under
article seventy-eight of the civil practice law and rules.
c. Whenever the commissioner has issued an order as provided in this
subdivision he may apply to any court of competent jurisdiction for the
enforcement of such order.
d. Any action taken by the commissioner in accordance with the
provisions of this subdivision shall not be exclusive, and may be taken
in conjunction with an action for a civil penalty for a violation of
paragraph a of this subdivision, or any private civil action brought by
an injured party, or both.
e. Any employee who has reason to believe that he or she may have been
discriminated against in violation of this subdivision may bring a
proceeding in accordance with the provisions of article fifteen of the
executive law.
Section: Previous
2803-A
2803-B
Article 28
2800
2801
2801-A
2801-B
2801-C 2801-D 2801-E
2801-F
2801-G
2802
2802-A
2803
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42 CFR 483.25 - Quality of care. | US Law | LII / Legal Informa...
https://www.law.cornell.edu/cfr/text/42/483.25
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§ 483.25 Quality of care.
Each resident must receive and the facility must provide the necessary
care and services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being, in accordance with the
comprehensive assessment and plan of care.
(a) Activities of daily living. Based on the comprehensive
assessment of a resident, the facility must ensure that—
(1) A resident's abilities in activities of daily living do not diminish
unless circumstances of the individual's clinical condition
demonstrate that diminution was unavoidable. This includes the
resident's ability to—
(i) Bathe, dress, and groom;
(ii) Transfer and ambulate;
(iii) Toilet;
(iv) Eat; and
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(v) Use speech, language, or other functional communication
systems.
(2) A resident is given the appropriate treatment and services to
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maintain or improve his or her abilities specified in paragraph (a)(1)
$117.29
of this section; and
(3) A resident who is unable to carry out activities of daily living
receives the necessary services to maintain good nutrition,
grooming, and personal and oral hygiene.
(b) Vision and hearing. To ensure that residents receive proper
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treatment and assistive devices to maintain vision and hearing
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abilities, the facility must, if necessary, assist the resident—
(1) In making appointments, and
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(2) By arranging for transportation to and from the office of a
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impairment or the office of a professional specializing in the
provision of vision or hearing assistive devices.
(c) Pressure sores. Based on the comprehensive assessment of a
resident, the facility must ensure that—
(1) A resident who enters the facility without pressure sores does
not develop pressure sores unless the individual's clinical condition
demonstrates that they were unavoidable; and
(2) A resident having pressure sores receives necessary treatment
and services to promote healing, prevent infection and prevent new
sores from developing.
(d) Urinary Incontinence. Based on the resident's comprehensive
assessment, the facility must ensure that—
(1) A resident who enters the facility without an indwelling
catheter is not catheterized unless the resident's clinical condition
demonstrates that catheterization was necessary; and
(2) A resident who is incontinent of bladder receives appropriate
treatment and services to prevent urinary tract infections and to
restore as much normal bladder function as possible.
(e) Range of motion. Based on the comprehensive assessment of a
resident, the facility must ensure that—
(1) A resident who enters the facility without a limited range of
motion does not experience reduction in range of motion unless
the resident's clinical condition demonstrates that a reduction in
range of motion is unavoidable; and
(2) A resident with a limited range of motion receives appropriate
treatment and services to increase range of motion and/or to
prevent further decrease in range of motion.
(f) Mental and Psychosocial functioning. Based on the
comprehensive assessment of a resident, the facility must ensure
that—
(1) A resident who displays mental or psychosocial adjustment
difficulty, receives appropriate treatment and services to correct the
assessed problem, and
(2) A resident whose assessment did not reveal a mental or
psychosocial adjustment difficulty does not display a pattern of
decreased social interaction and/or increased withdrawn, angry, or
depressive behaviors, unless the resident's clinical condition
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demonstrates that such a pattern was unavoidable.
(g) Naso-gastric tubes. Based on the comprehensive assessment of
a resident, the facility must ensure that—
(1) A resident who has been able to eat enough alone or with
assistance is not fed by naso-gastric tube unless the resident's
clinical condition demonstrates that use of a naso-gastric tube was
unavoidable; and
(2) A resident who is fed by a naso-gastric or gastrostomy tube
receives the appropriate treatment and services to prevent
aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic
abnormalities, and nasal-pharyngeal ulcers and to restore, if
possible, normal eating skills.
(h) Accidents. The facility must ensure that—
(1) The resident environment remains as free of accident hazards
as is possible; and
(2) Each resident receives adequate supervision and assistance
devices to prevent accidents.
(i) Nutrition. Based on a resident's comprehensive assessment, the
facility must ensure that a resident—
(1) Maintains acceptable parameters of nutritional status, such as
body weight and protein levels, unless the resident's clinical
condition demonstrates that this is not possible; and
(2) Receives a therapeutic diet when there is a nutritional problem.
(j) Hydration. The facility must provide each resident with sufficient
fluid intake to maintain proper hydration and health.
(k) Special needs. The facility must ensure that residents receive
proper treatment and care for the following special services:
(1) Injections;
(2) Parenteral and enteral fluids;
(3) Colostomy, ureterostomy, or ileostomy care;
(4) Tracheostomy care;
(5) Tracheal suctioning;
(6) Respiratory care;
(7) Foot care; and
(8) Prostheses.
(l) Unnecessary drugs—
(1) General. Each resident's drug regimen must be free from
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unnecessary drugs. An unnecessary drug is any drug when used:
(i) In excessive dose (including duplicate drug therapy); or
(ii) For excessive duration; or
(iii) Without adequate monitoring; or
(iv) Without adequate indications for its use; or
(v) In the presence of adverse consequences which indicate the
dose should be reduced or discontinued; or
(vi) Any combinations of the reasons above.
(2) Antipsychotic Drugs. Based on a comprehensive assessment
of a resident, the facility must ensure that—
(i) Residents who have not used antipsychotic drugs are not
given these drugs unless antipsychotic drug therapy is necessary
to treat a specific condition as diagnosed and documented in the
clinical record; and
(ii) Residents who use antipsychotic drugs receive gradual dose
reductions, and behavioral interventions, unless clinically
contraindicated, in an effort to discontinue these drugs.
(m) Medication Errors. The facility must ensure that—
(1) It is free of medication error rates of five percent or greater;
and
(2) Residents are free of any significant medication errors.
(n) Influenza and pneumococcal immunizations—
(1) Influenza. The facility must develop policies and procedures
that ensure that—
(i) Before offering the influenza immunization, each resident or
the resident's legal representative receives education regarding
the benefits and potential side effects of the immunization;
(ii) Each resident is offered an influenza immunization October 1
through March 31 annually, unless the immunization is medically
contraindicated or the resident has already been immunized
during this time period;
(iii) The resident or the resident's legal representative has the
opportunity to refuse immunization; and
(iv) The resident's medical record includes documentation that
indicates, at a minimum, the following:
(A) That the resident or resident's legal representative was
provided education regarding the benefits and potential side
effects of influenza immunization; and
(B) That the resident either received the influenza immunization
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or did not receive the influenza immunization due to medical
contraindications or refusal.
(2) Pneumococcal disease. The facility must develop policies and
procedures that ensure that—
(i) Before offering the pneumococcal immunization, each resident
or the resident's legal representative receives education regarding
the benefits and potential side effects of the immunization;
(ii) Each resident is offered a pneumococcal immunization,
unless the immunization is medically contraindicated or the
resident has already been immunized;
(iii) The resident or the resident's legal representative has the
opportunity to refuse immunization; and
(iv) The resident's medical record includes documentation that
indicates, at a minimum, the following:
(A) That the resident or resident's legal representative was
provided education regarding the benefits and potential side
effects of pneumococcal immunization; and
(B) That the resident either received the pneumococcal
immunization or did not receive the pneumococcal
immunization due to medical contraindication or refusal.
(v) Exception. As an alternative, based on an assessment and
practitioner recommendation, a second pneumococcal
immunization may be given after 5 years following the first
pneumococcal immunization, unless medically contraindicated or
the resident or the resident's legal representative refuses the
second immunization.
[56 FR 48873, Sept. 26, 1991, as amended at 57 FR 43925, Sept. 23,
1992; 70 FR 58851 (http://frwebgate.access.gpo.gov/cgi-bin
/getpage.cgi?dbname=2005_register&position=all&page=58851),
Oct. 7, 2005]
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Viewing Section 415.12 - Quality of care
http://w3.health.state.ny.us/dbspace/NYCRR10.nsf/11fb5c7998...
Effective Date: 01/13/93
Title: Section 415.12 - Quality of care
415.12 Quality of care. Each resident shall receive and the facility shall provide the necessary care
and services to attain or maintain the highest practicable physical, mental and psychosocial
well-being, in accordance with the comprehensive assessment and plan of care subject to the resident's
right of self-determination.
(a) Activities of daily living. Based on the comprehensive assessment of a resident, the facility shall
ensure that:
(1) A resident's abilities in activities of daily living do not diminish unless circumstances of the
individual's clinical condition demonstrate that diminution was unavoidable. This includes the
resident's ability to:
(i) bathe, dress and groom;
(ii) transfer and ambulate;
(iii) toilet;
(iv) eat; and
(v) use speech, language or other functional communication systems.
(2) A resident is given the appropriate treatment and services to maintain or improve his or her
abilities specified in paragraph (1) of this subdivision; and
(3) A resident who is unable to carry out activities of daily living receives the necessary services to
maintain good nutrition, grooming, and personal and oral hygiene.
(b) Vision and hearing. To ensure that residents receive proper treatment and assistive devices to
maintain vision and hearing abilities, the facility shall, if necessary, assist the resident:
(1) in making appointments;
(2) by arranging for transportation to and from the office of a medical practitioner specializing in the
treatment of vision or hearing impairment or the office of a professional specializing in the provision
of vision or hearing assistive devices if such services are not provided on-site; and
(3) by promoting the safekeeping, maintenance, and use of vision or hearing assistive devices which
the resident needs.
(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility shall ensure that:
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11/19/15 10:40 PM
(1) a resident who enters the facility without pressure sores does not develop pressure sores unless the
individual's clinical condition demonstrates that they were unavoidable despite every reasonable effort
to prevent them; and
(2) a resident having pressure sores receives necessary treatment and services to promote healing,
prevent infection and prevent new sores from developing.
(d) Urinary Incontinence. Based on the resident's comprehensive assessment, the facility shall ensure
that:
(1) a resident who is incontinent of bladder receives the appropriate treatment and services to prevent
urinary tract infections and to restore as much normal bladder function as possible; and
(2) a resident who enters the facility without an indwelling catheter is not catheterized unless the
resident's clinical condition demonstrates that catheterization was necessary.
(e) Range of motion. Based on the comprehensive assessment of a resident, the facility shall ensure
that:
(1) a resident who enters the facility without a limited range of motion does not experience reduction
in range of motion unless the resident's clinical condition demonstrates that a reduction in range of
motion is unavoidable; and
(2) a resident with a limited range of motion receives appropriate treatment and services to increase
range of motion and/or to prevent further decrease in range of motion.
(f) Mental and psychosocial functioning. Based on the comprehensive assessment of a resident, the
facility shall ensure that:
(1) a resident who displays mental or psychosocial adjustment difficulty receives appropriate
treatment and services to correct the assessed problem; and
(2) a resident whose assessment did not reveal a psychosocial adjustment difficulty does not display a
pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors,
unless the resident's clinical condition demonstrates that such a pattern was unavoidable.
(g) Enteral feeding tubes. (1) Based on the comprehensive assessment of a resident, the facility shall
ensure that a resident who has been able to eat alone or with assistance is not fed by an enteral feeding
tube unless the resident's clinical condition demonstrates that use of such a tube was unavoidable.
(2) A resident who is fed by an enteral feeding tube shall receive the appropriate treatment and
services to prevent aspiration pneumonia, diarrhea, significant regurgitation, vomiting, dehydration,
metabolic abnormalities, and nasal-pharyngeal ulcers and to restore, if possible, normal feeding
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function.
(3) Following consideration of possible alternatives for short term nutritional therapy, nasogastric
tubes and feeding formulations may be used for feeding purposes when determined clinically
appropriate by the attending physician and interdisciplinary care team which includes a health care
professional with training in diagnosis and management of swallowing disorders. Nasogastric tube
feedings shall be used to promote a therapeutic program to maintain adequate nutrition and hydration
and include a plan to help the resident develop or regain eating skills. (4) Residents receiving
nasogastric tube feedings shall be reassessed at a minimum by the registered professional nurse, social
worker, and dietitian as needed, but no less than once every six weeks, for the ability to return to
normal feeding function. If the nasogastric feeding is continued, the reasons for continuation shall be
documented in the resident's clinical record. If nasogastric feedings are to be continued longer than 95
days, permanent enteral feeding procedures such as surgical gastrostomy or jejunostomy shall be
considered.
(5) Nasogastric tube feeding formulations shall be given in accordance with the manufacturer's
instructions or at a rate appropriate to the physical size of the resident and the amount of fluid and
nutrients necessary to meet the assessed caloric and fluid needs of the resident.
(6) To minimize resident discomfort, nasogastric tubes used for resident feeding purposes shall:
(i) be the smallest gauge appropriate for the patient and shall not exceed 3.96 millimeters (#12
French) in outside diameter unless medically indicated;
(ii) be made of a soft, flexible material such as medical grade polyurethane or silicone; and
(iii) be specifically manufactured for nasogastric feeding purposes.
(7) The facility shall develop and follow policies and procedures for nasogastric tube feedings which
are written in accordance with prevailing standards of professional practice and in consultation with
the medical, nursing, dietary and pharmacy services of the facility. Medical practitioners shall be
informed of such policies and procedures governing the use of nasogastric tubes for resident feeding.
The policies and procedures shall address as a minimum:
(i) types and sizes of nasogastric tubes and the various types of feeding formulations available at the
facility;
(ii) the need to assess each resident's clinical and nutritional status to determine the size of the
nasogastric tube and type of feeding appropriate for that individual;
(iii) standard techniques for inserting a nasogastric tube and confirming the correct placement of the
tube;
(iv) procedures for administering nasogastric feedings including positioning the resident and the need
for resident observation and monitoring before, during and following the feeding; and
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(v) infection control policies related to tube feedings.
(h) Accidents. The facility shall ensure that:
(1) the resident environment remains as free of accident hazards as is possible; and
(2) each resident receives adequate supervision and assistive devices to prevent accidents.
(i) Nutrition. Based on a resident's comprehensive assessment, the facility shall ensure that a resident:
(1) maintains acceptable parameters of nutritional status, such as body weight and protein levels,
unless the resident's clinical condition demonstrates that this is not possible; and
(2) receives a therapeutic diet when there is a nutritional problem.
(j) Hydration. The facility shall provide each resident with sufficient fluid intake to maintain proper
hydration and health.
(k) Special needs. The facility shall ensure that residents receive proper
treatment and care for the following special services:
(1) injections;
(2) parenteral and enteral fluids;
(3) colostomy, ureterostomy or ileostomy care;
(4) tracheostomy care;
(5) tracheal suctioning;
(6) respiratory care;
(7) podiatric care; and
(8) prostheses.
(l) Drug therapy. (1) Unnecessary drugs. Each resident's drug regimen shall include only those
medications prescribed to treat a specific documented illness or condition and not otherwise
contraindicated for a given resident. The drug regimen shall be monitored for evidence of both
adverse actions and therapeutic effect. Dose changes or discontinuation of the drug must be made if
the drug is ineffective and/or is causing disabling or harmful side effects and/or the condition for
which it was prescribed has resolved.
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(2) Psychotropic drugs. Based on a comprehensive assessment of a resident and consistent with the
provisions of subdivision (a) of section 415.4 of this Part, the facility shall ensure that:
(i) the use of psychotropic drugs shall:
(a) meet all conditions of paragraph (1) of this subdivision;
(b) be ordered by a physician who, in accordance with generally accepted standards of care and
services, specifies the problem for which the drug is prescribed;
(c) be used, except in emergencies, only as an integral part of a resident's comprehensive care plan
and only after alternative methods for treating the condition or symptoms have been tried and have
failed; and
(d) be discontinued if harmful effects of the medication outweigh the beneficial effects of the drug. (ii)
residents who use psychotropic drugs receive gradual dose reductions and behavioral interventions,
unless clinically contraindicated, in an effort to discontinue these drugs and assist the resident to attain
and maintain optimum physical and emotional functioning.
(m) Medication errors. The facility shall ensure that:
(1) it is free of medication error rates of five percent or greater; and
(2) residents are free of any significant medication errors.
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At a Special Term _____ of the
Supreme Court of the State of New
York, held in and for the County of
Westchester at the Courthouse located at
111 Dr. Martin Luther King Jr. Blvd.,
White Plains New York 10601 On
the_____day of__________, 2005.
PRESENT: HON. __________________________,
J.S.C.
-----------------------------------------------------------------------------X
MARSHA DENHAM, as proposed Administrator
for the Estate of HARRIET GUTSCHNEIDER,
Petitioner,
-against-
EMERGENCY
ORDER TO
SHOW CAUSE
BETH ISREAL NURSING HOME, INC. d/b/a SCHNURMACHER
NURSING HOME OF BETH ISRAEL MEDICAL CENTER,
Respondent.
------------------------------------------------------------------------------X
Upon the reading and filing of the affirmation of Benjamin Z. Katz, Esq., dated
October ____, 2005 and the annexed exhibits,
LET Respondent, BETH ISREAL NURSING HOME, INC. d/b/a SCHNURMACHER
NURSING HOME OF BETH ISRAEL MEDICAL CENTER, show cause at IAS Part
Room
,
, Supreme Court, State of New York, County Westchester, to be held at the
Courthouse thereof, located at 111 Dr. Martin Luther King Jr. Blvd., White Plains, NY
10601 on the______day of ________2005, at 9:30 a.m., or as soon thereafter as counsel
can be heard, why an order should not be entered herein granting pre-action discovery
directing the respondent to provide petitioner with a complete copy of petitioner’s
medical records, films, photographs and videos of Harriet Gutschneider; and it is further
ORDERED, that pending a hearing of this matter, the respondents and all other
persons acting on their behalf are hereby enjoined and restrained from destroying,
altering, modifying, changing, or removing from its present location the above identified
material at issue herein; and it is further
SUFFICIENT REASON THEREFORE, let personal service by Federal
Express next day delivery or pursuant to CPLR 311(a)(1) of a copy of this order and all
supporting documents upon Beth Israel Nursing Home First Avenue d/b/a Schurmacher
Nursing Home of Beth Israel Medical Center at 12 Tibbits Avenue White Plains, NY
10606 on or before the ______day of _________, 2005, be deemed good and sufficient
service.
ENTER:
_________________________
HON.
,J.S.C.
To the best of the undersigned’s knowledge,
information and belief formed after an inquiry
reasonable under the circumstances, the within
document(s) and contentions contained herein
are not frivolous as defined in 22NYCRR 130.1.1a.
____________________________________
Benjamin Z. Katz, Esq.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
------------------------------------------------------------------------------X
MARSHA DEHAM, as the proposed Administratrix
for the Estate of HARRIET GUTSCHNEIDER,
Petitioners,
-againstBETH ISRAEL NURSING HOME, INC. d/b/a SCHNURMACHER
NURSING HOME OF BETH ISRAEL MEDICAL CENTER,
Index No.:
EMERGENCY
AFFIRMATION IN
SUPPORT OF ORDER
TO SHOW CAUSE
Respondent.
------------------------------------------------------------------------------X
Benjamin Z. Katz, an attorney duly licensed to practice law before the Courts of
the State of New York, affirms the following to be true under the penalty of perjury:
1.
I am associated with the law firm of KELLY & GROSSMAN, LLP
attorneys for petitioner, MARSHA DENHAM as the proposed Administratrix for the
Estate of HARRIET GUTSCHNEIDER. As such, I am fully familiar with the facts and
circumstances surrounding this action based upon the case files maintained by this
office.
2.
This affirmation is submitted in support of the instant pre-action motion
seeking an Order pursuant to CPLR §3102(c) and 10 NYCRR 415.3(c)(1)(iv) directing
respondents to provide Harriet Gutschneider’s outstanding medical records, and for such
other and further relief which this Court deems just and proper.
3.
The petitioner seeks preservation and production of evidence herein that is
relevant to a potential action premised upon of PHL §2801-d, negligence, gross
negligence and wrongful death.
4.
CPLR § 3102 (c) states, in pertinent part, that before an action is
commenced, disclosure to aid in bringing an action, to preserve information or to aid in
arbitration, may be obtained, but only by court order. See Exhibit “A” annexed hereto.
5.
Pursuant to 10 NYCRR 415.3(c)(1)(iv), medical facilities are required to
permit inspection of all medical records within twenty-four hours of either an oral or
written request by the resident or his or her representatives. See Exhibit “B” annexed
hereto.
BACKGROUND
7.
Your affirmant has been retained to investigate possible claims of medical
malpractice, negligence, wrongful death and nursing home neglect injuries sustained by
Harriet Gutshneider. To investigate the care and treatment of Harriet Gutschneider, a
review of all medical records are vital.
8.
Upon information and belief, Harriet Gutschneider was a resident at
Schnurmacher Nursing Home of Beth Israel Medical Center from March 2000 through
December 26, 2004 and January 1, 2005 through January 27, 2005.
PROCEDURAL HISTORY
9.
On or about April 4, 2005, petitioner requested a complete copy of Harriet
Gutschneider’s medical records from respondent, Schnurmacher Nursing Home of Beth
Israel Medical Center. See Exhibit “C” annexed hereto.
10.
Pursuant to 10 NYCRR 415.3(c )(1)(iv), each resident shall have the right
to photocopies of the records or any portions of them upon request and two working days
advance notice to the facility.
11.
Respondent, Schurmacher Nursing Home of Beth Israel Medical Center
failed to permit inspection of or provide any medical records relating to Harriet
Gutschneider medical records despite petitioner’s April 4, 2005 written request.
12.
Respondent, Schnurmacher Nursing Home of Beth Israel Medical Center
failed to permit inspection of or provide any medical records relating to Harriet
Gutshneider’s medical records despite petitioner’s April 4, 2005 written requests.
15.
To date, respondents, Schnurmacher Nursing Home of Beth Israel Medical
Center have ignored petitioner’s document requests and the controlling statute and code
mentioned above.
16.
The documents being sought are material and necessary to fully analyze
petitioner’s claim(s).
17.
In order to preserve the material and relevant evidence, the petitioner
requires an order of the court directing respondents to produce the requested material to
the petitioners. Claimant desires all records and films of this patient from March 2000
through December 26, 2004 and January 1, 2005 through January 27, 2005.
18.
To date respondents have failed to articulate any justifiable excuse or
reason as to why it has willfully failed to comply with CPLR §3102(c) and 10 NYCRR
415.3(c)(1)(iv).
19.
No previous application for the relief sought herein has been made to this
or any court or judge.
20.
Time is of the essence for this Order To Show Cause because the statutes
of limitation for petitioner’s potential causes of action are running.
WHEREFORE, it is respectfully requested that this court issue an Order granting
petitioner’s Order To Show Cause in its entirety, and on the return date, that an order be
entered: (i) directing the respondents to produce the material identified herein, in its
entirety; (ii) compelling respondents to comply with all of petitioner’s requests for
medical records; and for attorney fees, costs and expenditures associated with the making
of this Order To Show Cause, along with such other relief as this court deems just and
proper.
Dated: Hauppauge, New York
October 3, 2005
Respectfully submitted,
KELLY & GROSSMAN, LLP
Attorneys for Petitioner
By: ________________________________
BENJAMIN Z. KATZ, ESQ.
888 Veterans Memorial Highway, Suite 210
Hauppauge, New York 11788
Phone: (631) 864-5575
Fax: (631) 864-5572
Our File No.: 05-506
SORTINGNURSINGHOMECHARTS
TRANSFERSHEETS/EMSREPORTS
1. Transferordischargeevenifdatedwiththelastdaypatientwasthere
ADMISSIONSHEETS:
1. Preadmission
2. Cumulativemedicaldiagnosissheets
3. FaceSheet
HOSPITALDISCHARGESUMMARY
1. Doctor’ssummariesbeforegoingintonursinghome
2. Examples:Consultations,EKG,etc.
3. HospitalandCommunityPatientReviewInstrument(NY)PRI
PHYSICIAN’SORDERS:
1. Phoneandfaxordersaswell
2. Medicationorders
PHYSICIANPROGRESSNOTES:
1.
2.
3.
4.
5.
Historyandphysical
Dental,Eyecare,Podiatry,etc.
Psychological/psychiatricnotesputbehindprogressnoteswithatab
Consultations
Geriatrics
MINIMUMDATASETS/RAPSHEETS:
1. Rapreviewreport
2. KeywordsTriggered
NURSINGASSESSMENTS&SUMMARIES
1. HistoryandAssessment
2. SiderailScreen,FallRiskAssessment,OralHealth&DentalAssessment
3. KeyWords:Screening,Tools,etc.
CAREPLANS
1. Keywords–Evaluation,ProblemList,ProblemandGoal
2. SortbyNumbers(notbydates)IntradisciplinaryCarePlan
DISCHARGEPLAN
NURSESNOTES
1. Patientprogressrecords(willhavedate,timeandnursesinitials)
DECUBITUS/SKINREPORTS
1. Flagwheretherearephotographicwoundpictures
2. Weeklyskinassessment
3. Bradenscale
ADL/PCRSHEETS
1. ADL(Assistancewithdailyliving)–Residentcareflowsheet
2. PCR(Personalcarerecords)
3. ADLtrackingsheetincludesbathing,toileting,dressingandeating
MEDICATIONSHEETS
1.
2.
3.
4.
MARS–MedicationAdministrationRecord
TARS–TreatmentAdministrationRecord
Behavior/Interventionmonthlyflowrecord
NosocomialInfectionReportForm
TREATMENTSHEETS
1. Cleansing,GTubeFlushing,PictureoftheBody
DRUGREVIEWS/PHARMACYREPORTS
1. Drugdepositionrecord
2. Proofofuseformtonarcotics&otherdangerousdrugs
NUTRITIONALASSESSMENTS
1.
2.
3.
4.
DietInstruction
EnternalFlowRecord
FeedingTubeInfo
EternalFeeding
WEIGHTRECORDS/VITALSIGNS
1. BloodPressure,Temperature,Weight,Height
I&O/B&B
1. IntakeandOutput
2. Bowelmovementandbladder
LABRECORDS
1. Keywords–CollectedRange
XRAYREPORTS
1. Keywords–Films,Imaging,ChestPortable
2. Ultrasound,Impression,View,CervicalSpine,Films,Imaging,Chest
portable
RESTORATIVEPROGRAMS
1. RangeofMotion
ACTIVITYRECORDS
1. Recreation
SOCIALSERVICERECORDS
1.
2.
3.
4.
KAASSAssessmentScore
NotificationofRoomChange
MiniMentalStatusguide
Roomchange,SocialHistory
PHYSICALTHERAPYRECORDS
1. EvaluationofCarePlan
OCCUPATIONALTHERAPYRECORDS
SPEECHTHERAPYRECORDS
1. SLPSpeech
2. Dysphagia
3. RespiratoryTherapy
PERMITSANDRELEASES
1. LivingWill
2. InventoryList
3. Consent,AdvanceDirectives,POA,Authorizations,PersonalBelongings,
Medicare/Medicaid
EMERGENCYROOMRECORDS
Whenthereisagapinthedatesthatiswhentheresidentwenttothehospital
Whentherearetwoormoresetsofdates(foradmissions),makecopies.

Viewing Section 415.22 - Clinical records
Title: Section 415.22 - Clinical records
415.22 Clinical records. (a) The facility shall maintain clinical records for each resident in accordance
with accepted professional standards and practice. The records shall be:
(1) complete;
(2) accurately documented;
(3) readily accessible; and
(4) systematically organized.
(b) Clinical records shall be retained for six years from the date of discharge or death or for residents
who are minors, for three years after the resident reaches the age of majority (18).
(c) The facility shall safeguard clinical record information against loss, destruction, or unauthorized
use;
(d) The facility shall keep confidential all information contained in the resident's records, regardless of
the form or storage method of the records, except when release is required by:
(1) transfer to another health care institution;
(2) law; or
(3) the resident.
(e) The facility shall permit each resident to inspect his or her records and obtain copies of such
records in accordance with the provisions of subparagraph (iv) of paragraph (1) of subdivision (c) of
section 415.3 of this Part.
(f) The clinical record shall contain:
(1) sufficient information to identify the resident;
(2) a record of the resident's comprehensive assessments;
(3) the plan of care and services provided;
(4) the results of any preadmission screening conducted by the State;
(5) progress notes by all practitioners and professional staff caring for the resident; and
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Viewing Section 415.22 - Clinical records
(6) reports of all diagnostic tests and results of treatments and procedures ordered for the resident.
Volume: C
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Viewing Section 415.3 - Residents' rights
Title: Section 415.3 - Residents' rights
415.3 Residents' rights. (a) The facility shall ensure that all residents are afforded their right to a
dignified existence, self-determination, respect, full recognition of their individuality, consideration
and privacy in treatment and care for personal needs and communication with and access to persons
and services inside and outside the facility. The facility shall protect and promote the rights of each
resident, and shall encourage and assist each resident in the fullest possible exercise of these rights as
set forth in subdivisions (b) - (h) of this section. The facility shall also consult with residents in
establishing and implementing facility policies regarding residents' rights and responsibilities.
(1) The facility shall advise each member of the staff of his or her responsibility to understand, protect
and promote the rights of each resident as enumerated in this section.
(2) The facility shall fully inform the resident and the resident's designated representative both orally
and in writing in a method of communication that the individuals understand the resident's rig s and
all rules and regulations governing resident conduct and responsibilities during the stay in the facility.
Such notification shall be made prior to or upon admission and during the resident's stay. Receipt of
such information, and any amendments to it, shall be acknowledged in writing. A summary of such
information shall be provided by the Department and posted in the facility in large print and in
language that is easily understood.
(3) The written information provided pursuant to paragraph (2) of this subdivision shall include but
not be limited to a listing of those resident rights and facility responsibilities enumerated in
subdivisions (b) through (h) of this section. The facility's policies and procedures shall also be
provided to the resident and the resident's designated representative upon request.
(4) The facility shall communicate to the resident an explanation of his or her responsibility to obey
all reasonable regulations of the facility and to respect the personal rights and private property of
other residents.
(5) Any written information required by this Part to be posted shall be posted conspicuously in a
public place in the facility that is frequented by residents and visitors, posted at wheelchair height.
(b) Admission rights. The nursing home shall protect and promote the rights of residents and potential
residents by establishing and implementing policies which ensure that the facility:
(1) shall not require a third party guarantee of payment to the facility as a condition of admission, or
expedited admission, or continued stay in the facility;
(2) shall not charge, solicit, accept or receive, in addition to any amount otherwise required to be paid
by third party payors, any gift, money, donation or other consideration as a precondition of admission,
expedited admission or continued stay in the facility except that arrangements for prepayment for
basic services not exceeding three months shall not be precluded by this paragraph;
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(3) shall not require residents or potential residents to waive their rights to Medicare or Medicaid
benefits;
(4) shall not require oral or written assurance that residents or potential residents are not eligible for,
or will not apply for, Medicare or Medicaid benefits;
(5) shall obey all pertinent state and local laws which prohibit discrimination against individuals
entitled to Medicaid benefits;
(6) may require an individual who has legal access to a resident's income or resources available to pay
for facility care, to sign a contract, without incurring personal financial liability, to provide the facility
payment from the resident's income or resources;
(7) may charge a resident who is eligible for Medicaid for items and services the resident has
requested and received, and that are not specified at the time of admission as included in basic nursing
home services, so long as the facility gives proper notice of the availability and cost of these items and
services to the resident and does not condition the resident's admission or continued stay on the
request for and receipt of such additional items and services; and
(8) may solicit, accept or receive a charitable, religious or philanthropic contribution from an
organization or from a person unrelated to the resident, or potential resident, only to the extent that the
contribution is not a condition of admission, expedited admission, or continued stay in the facility.
(c) Protection of Legal Rights. (1) Each resident shall have the right to:
(i) exercise his or her rights as a resident of the facility and as a citizen or resident of the United States
and New York State including the right to vote, with access arranged by the facility and to this end
may voice grievances without discrimination or reprisal for voicing the grievances, and have a right of
action for damages or other relief for deprivations or infringements of his or her right to adequate and
proper treatment and care established by any applicable statute, rule, regulation or contract; (ii)
recommend changes in policies and services to facility staff and/or to any outside representatives, free
of interference, coercion, discrimination, restraint or reprisal from the facility and to obtain prompt
efforts by the facility to resolve grievances the resident may have, including those with respect to the
behavior of other residents;
(iii) exercise his or her individual rights or have his or her rights exercised by a person authorized by
state law;
(iv) inspect all records including clinical records pertaining to himself or herself within 24 hours after
an oral or written request to the facility and, after receipt of such records for inspection, to purchase at
a cost which is the lower of the cost incurred by the facility in production of the record or 75 cents per
page, photocopies of the records or any portions of them upon request and two working days advance
notice to the facility. The designated representative who has authority to make health care decisions
for the resident shall likewise have access to the resident's records in accordance with this
subparagraph, State law and the rights of a competent resident to deny such access. A resident or such
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designated representative shall not be denied access to the clinical records solely because of inability
to pay.
(v) examine the results of the most recent survey of the facility conducted by federal or State
surveyors including any statement of deficiencies, any plan of correction in effect with respect to the
facility and any enforcement actions taken by the Department of Health. The results shall also be
made available by the facility for examination. They shall be made available in a place readily
accessible to residents and designated representatives without staffing assistance;
(vi) receive information from agencies acting as resident advocates, and be afforded the opportunity to
contact these agencies;
(vii) be free from verbal, sexual, mental or physical abuse, corporal punishment and involuntary
seclusion, and free from chemical and physical restraints except those restraints authorized in
accordance with section 415.4 of this Part;
(viii) exercise his or her civil and religious liberties, including the right to independent personal
decisions and knowledge of available choices, which shall not be infringed; and
(ix) request, or have the resident's designated representative request, and be provided information
concerning his or her specific assignment to a patient classification category as contained in Appendix
13-A of this Title, entitled, "Patient Categories and Case Mix Indices Under Resource Utilization
Group (RUG-II) Classification System."
(2) With respect to its responsibilities to the resident the facility shall:
(i) furnish a written description of legal rights which includes:
(a) a description of the manner of protecting personal funds, under subdivision (h) of section 415.26
of this Part; and
(b) a statement that the resident may file a complaint with the facility or the New York State
Department of Health concerning resident abuse, neglect, mistreatment and misappropriation of
resident property in the facility. The statement shall include the name, address and telephone number
of the office established by the
Department to receive complaints and of the State Office for the Aging Ombudsmen Program;
(ii) promptly notify the resident and the resident's designated representative when there is:
(a) a change in room. Except when the medical condition of the resident requires an immediate room
change or an emergency situation has developed, such change in room shall require prior notice and
consultation with the resident as well as reasonable accommodation of any resident needs or
preferences;
(b) a change in roommate assignment which shall be acceptable, where possible, to all affected
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residents; or
(c) a change in resident rights under Federal or State law or regulations as specified in this section;
(iii) record and periodically update the address and phone number of the resident's designated
representative;
(iv) provide immediate access to any resident by the following:
(a) any representative of the Secretary of Health and Human Services;
(b) any representative of the Department of Health;
(c) the resident's responsible physician;
(d) ombudsmen who are duly certified and designated by the State Office for the Aging;
(e) representatives of the Commission on Quality of Care for the Mentally Disabled which is
responsible for the protection and advocacy system for developmentally disabled individuals and
mentally ill individuals; (f) immediate family or other relatives of the resident, subject to the resident's
right to deny or withdraw consent at any time, and
(g) others who are visiting with the consent of the resident, subject to reasonable restrictions and the
resident's right to deny or withdraw consent at any time;
(v) post the names, addresses and telephone numbers of all pertinent state client advocacy groups and
provide reasonable access to any resident by any entity or individual that provides health, social, legal
or other services to the resident, subject to the resident's right to deny or withdraw consent at any
time;
(vi) comply with the provisions of Part 411 of this Title regarding Ombudsmen Access to Residential
Health Care Facilities; and
(vii) inform residents of the facility's visiting hour policies.
(d) Right to Privacy. Each resident shall have the right to:
(1) personal privacy and confidentiality of his or her personal and clinical records which shall reflect:
(i) accommodations, medical treatment, written and telephone communications, personal care,
associations and communications with persons of his or her choice, visits, and meetings of family and
resident groups. Resident and family groups shall be provided with private meeting space and
residents shall be given access to a private area for visits or solitude. Such requirement shall not
require the facility to provide a private room for each resident; and
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(ii) the resident's right to approve or refuse the release of personal and clinical records to any
individual outside the facility except when:
(a) the resident is transferred to another health care institution; or
(b) record release is required by law;
(2) privacy in written communications, including the right to:
(i) send and receive mail promptly that is unopened; and
(ii) have access to stationery, postage and writing implements at the resident's own expense; and
(3) regular access to the private use of a telephone that is wheelchair accessible and usable by hearing
impaired and visually impaired residents.
(e) Right to Clinical Care and Treatment. (1) Each resident shall have the right to:
(i) adequate and appropriate medical care, and to be fully informed by a physician in a language or in
a form that the resident can understand, using an interpreter when necessary, of his or her total health
status, including but not limited to, his or her medical condition including diagnosis, prognosis and
treatment plan. Residents shall have the right to ask questions and have them answered;
(ii) refuse to participate in experimental research and to refuse medication and treatment after being
fully informed and understanding the probable consequences of such actions;
(iii) choose a personal attending physician from among those who agree to abide by all federal and
state regulations and who are permitted to practice in the facility;
(iv) be fully informed in advance about care and treatment and of any changes in that care or
treatment that may affect the resident's well-being;
(v) participate in planning care and treatment or changes in care and treatment. Residents adjudged
incompetent or otherwise found to be incapacitated under the laws of the State of New York shall
have such rights exercised by a designated representative who will act in their behalf in accordance
with State law; and
(vi) self-administer drugs if the interdisciplinary team, as defined by Section 415.11, has determined
for each resident that this practice is safe.
(2) With respect to its responsibilities to the resident, the facility shall:
(i) inform each resident of the name, office address, phone number and specialty of the physician
responsible for his or her own care.
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(ii) except in a medical emergency, consult with the resident immediately if the resident is competent,
and notify the resident's physician and designated representative within 24 hours when there is:
(a) an accident involving the resident which results in injury requiring professional intervention;
(b) a significant improvement or decline in the resident's physical, mental, or psychosocial status in
accordance with generally accepted standards of care and services;
(c) a need to alter treatment significantly; or
(d) a decision to transfer or discharge the resident from the facility as specified in subdivision (h) of
this section; and
(iii) provide all information a resident or the resident's designated representative when permitted by
State law, may need to give informed consent for an order not to resuscitate and comply with the
provisions of section 405.43 of this Subchapter regarding orders not to resuscitate. Upon resident
request the facility shall furnish a copy of the pamphlet, "Do Not Resuscitate Orders - A Guide for
Patients and Families".
(f) Residential Rights. Each resident shall have the right to:
(1) refuse to perform services for the facility. The resident may perform such services, if he or she
chooses, only when:
(i) there is work available in the facility that the resident is capable of safely performing;
(ii) the facility has documented the need or desire for work in the plan of care;
(iii) the plan specifies the nature of the services performed and whether the services are voluntary or
paid;
(iv) compensation for paid services is at or above prevailing rates; and
(v) the resident agrees to the work arrangement described in the plan of care;
(2) retain, store securely and use personal possessions, including some furnishings, and appropriate
clothing, as space permits, unless to do so would infringe upon the rights or health and safety of the
resident or other residents in which case the facility shall explore alternatives through discussion with
the resident, the resident council or interdisciplinary care team, and provide or assist in the
arrangement of storage for possessions. The resident shall have the right to locked storage space in his
or her room;
(3) share a room with his or her spouse, relative or partner when these residents live in the same
facility and both consent to the arrangement. If a spouse, relative or partner resides in a location out of
the facility, the resident shall be assured of privacy for visits;
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(4) participate in the established residents' council;
(5) meet with, and participate in activities of social, religious and community groups at his or her
discretion; and
(6) receive, upon request, kosher food or food products prepared in accordance with the Hebrew
orthodox religious requirements when the
resident, as a matter of religious belief, desires to observe Jewish dietary laws.
(g) Financial Rights. (1) Each resident shall have the right to manage his or her financial affairs or
authorize in writing the facility to manage personal finances in accordance with paragraph (5) of
subdivision (h) of section 415.26 of this Part. The facility may not require residents to deposit their
personal funds with the facility;
(2) With respect to its responsibilities to the resident, the facility shall:
(i) inform each resident who is entitled to Medicaid benefits, in writing, at the time of admission to the
nursing home or, when the resident becomes eligible for Medicaid of:
(a) the items and services that are included in nursing home services under the State plan and for
which the resident may not be charged;
(b) those other items and services that the facility offers and for which the resident may be charged,
and the amount of charges for those services; and
(c) the clear distinction between the two lists required by clauses (a) and (b) of this subparagraph;
(ii) inform each resident when changes are made to the items and services specified in clauses (a) and
(b) of subparagraph (i) of this paragraph;
(iii) inform each resident verbally and in writing before, or at the time of admission, and periodically
when changes occur during the resident's stay, of services available in the facility and of charges for
those services, including any charges for services not covered by sources of third party payment or by
the facility's basic per diem rate; and
(iv) prominently display in the facility written information, and provide to residents and potential
residents oral and written information about how to apply for and use Medicare and Medicaid
benefits, and how to receive refunds for previous payments covered by such benefits as well as a
description of the requirements and procedures for establishing eligibility for Medicaid, including the
right to request an assessment which will determine the extent of a couple's non-exempt resources at
the time of institutionalization and attribute to the community spouse an equitable share of resources
which cannot be considered available for payment toward the cost of the institutionalized spouse's
medical care in his or her process of spending down to Medicaid eligibility levels.
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(h) Transfer and discharge rights. Transfer and discharge shall include movement of a resident to a
bed outside of the certified facility whether that bed is in the same physical plant or not. Transfer and
discharge shall not refer to movement of a resident to a bed within the same certified facility, and does
not include transfer or discharge made in compliance with a request by the resident, the resident’s
legal representative or health care agent, as evidenced by a signed and dated written statement, or
those that occur due to incarceration of the resident.
(1) With regard to the transfer or discharge of residents, the facility shall:
(i) permit each resident to remain in the facility, and not transfer or discharge the resident from the
facility unless such transfer or discharge is made in recognition of the resident's rights to receive
considerate and respectful care, to receive necessary care and services, and to participate in the
development of the comprehensive care plan and in recognition of the rights of other residents in the
facility. (a) The resident may be transferred only when the interdisciplinary care team, in consultation
with the resident or the resident's designated representative, determines that:
(1) the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be
met after reasonable attempts at accommodation in the facility;
(2) the transfer or discharge is appropriate because the resident's health has improved sufficiently so
the resident no longer needs the services provided by the facility;
(3) the safety of individuals in the facility is endangered; or
(4) The health of individuals in the facility is endangered;
(b) Transfer and discharge shall also be permissible when the resident has failed, after reasonable and
appropriate notice, to pay for (or to have paid under Medicare, Medicaid or third party insurance) a
stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility the
facility may charge a resident only allowable charges under Medicaid. Such transfer or discharge shall
be permissible only if a charge is not in dispute, no appeal of a denial of benefits is pending, or funds
for payment are actually available and the resident refuses to cooperate with the facility in obtaining
the funds.
(c) Transfer or discharge shall also be permissible when the facility discontinues operation and has
received approval of its plan of closure in accordance with subdivision (i) of Section 401.3 of this
Subchapter.
(ii) ensure complete documentation in the resident's clinical record when the facility transfers or
discharges a resident under any of the circumstances specified in subparagraph (i) of this paragraph.
The documentation shall be made by:
(a) the resident's physician and, as appropriate, interdisciplinary care team, when transfer or discharge
is necessary under subclause (1) or (2) of clause (a) of subparagraph (i) of this paragraph; and
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(b) a physician when transfer or discharge is necessary due to the endangerment of the health of other
individuals in the facility under subclause (3) of clause (a) of subparagraph (i) of this paragraph;
(iii) before it transfers or discharges a resident:
(a) notify the resident and designated representative, if any, and, if known, family member of the
resident of the transfer or discharge and the reasons for the move in writing and in a language and
manner the resident and/or family member understand;
(b) record the reasons in the resident's clinical record; and
(c) include in the notice the items described in subparagraph (v) of this paragraph;
(iv) provide the notice of transfer or discharge required under subparagraph (iii) of this paragraph at
least 30 days before the resident is transferred or discharged, except that notice shall be given as soon
as practicable before transfer or discharge, but no later than the date on which a determination was
made to transfer or discharge the resident, under the following circumstances:
(a) the safety of individuals in the facility would be endangered;
(b) the health of individuals in the facility would be endangered;
(c) the resident's health improves sufficiently to allow a more immediate transfer or discharge;
(d) an immediate transfer or discharge is required by the resident's urgent medical needs;
(e) the transfer or discharge is the result of a change in the level of medical care prescribed by the
resident’s physician; or
(f) the resident has not resided in facility for 30 days.
(v) include in the written notice specified in subparagraph (iii) of this paragraph the following:
(a) The reason for transfer or discharge;
(b) The specific regulations that support, or the change in Federal or State law that requires, the
action;
(c) The effective date of transfer or discharge;
(d) The location to which the resident will be transferred or discharged;
(e) a statement that the resident has the right to appeal the action to the State Department of Health,
which includes:
(1) an explanation of the individual’s right to request an evidentiary hearing appealing the decision;
(2) the method by which an appeal may be obtained;
(3) in cases of an action based on a change in law, an explanation of the circumstances under which an
appeal will be granted;
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(4) an explanation that the resident may remain in the facility (except in cases of imminent danger)
pending the appeal decision if the request for an appeal is made within 15 days of the date the resident
received the notice of transfer/discharge;
(5) in cases of residents discharged/transferred due to imminent danger, a statement that the resident
may return to the first available bed if he or she prevails at the hearing on appeal; and
(6) a statement that the resident may represent him or herself or use legal counsel, a relative, a friend,
or other spokesman;
(f) the name, address and telephone number of the State long term care ombudsman;
(g) for nursing facility residents with developmental disabilities, the mailing address and telephone
number of the agency responsible for the protection and advocacy of developmentally disabled
individuals established under Part C of the Developmental Disabilities Assistance and Bill of Rights
Act;
(h) for nursing facility residents who are mentally ill, the mailing address and telephone number of the
agency responsible for the protection and advocacy of mentally ill individuals established under the
Protection and Advocacy for Mentally Ill Individuals Act;
(vi) provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or
discharge from the facility in the form of a discharge plan which addresses the medical needs of the
resident and how these will be met after discharge, and provide a discharge summary pursuant to
section 415.11, subdivision (d) of this Title; and
(vii) permit the resident, their legal representative or health care agent the opportunity to participate in
deciding where the resident will reside after discharge from the facility.
(2) The department shall grant an opportunity for a hearing to any resident who requests it because he
or she believes the facility has erroneously determined that he or she must be transferred or discharged
in accordance with the following:
(i) the resident has the right to:
(a) request a hearing to appeal the transfer or discharge notice at any time within 60 days from the
date the notice of transfer or discharge is received by the resident;
(b) remain in the facility pending an appeal determination if the appeal request is made within 15 days
of the date of receipt of the transfer or discharge notice;
(c) a post-transfer/discharge appeal determination if the resident did not request an appeal
determination within 15 days of the date of receipt of the transfer or discharge notice;
(d) return to the facility to the first available semi-private bed if the resident wins the appeal, prior to
admitting any other person to the facility; and
(e) represent him or herself, or use legal counsel, a relative, a friend or other spokesman.
(ii) The resident or the resident’s representative as described in (2)(i)(e) of this paragraph must be
given the opportunity to:
(a) examine at a reasonable time before the date of the hearing, at the facility, and during the hearing,
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at the place of the hearing:
(1) the contents of the resident’s file including his/her medical records; and
(2) all documents and records to be used by the facility at the hearing on appeal;
(b) bring witnesses;
(c) establish all pertinent facts and circumstances;
(d) present an argument without undue interference; and
(e) question or refute any testimony or evidence, including the opportunity to confront and crossexamine adverse witnesses.
(iii) All hearings must be conducted in accordance with Article 3 of the State Administrative
Procedure Act, and in accordance with the following:
(a) the presiding officer shall have the power to obtain medical assessments and psychosocial
consultations, and the authority to issue subpoenas;
(b) the nursing home shall have the burden of proof that the discharge or transfer is/was necessary and
the discharge plan appropriate;
(c) an administrative hearing must be scheduled within 90 days from the date of the request for a
hearing on appeal; and
(d) the parties must be notified in writing of the decision and provided information on the right to seek
review of the decision, if review is available.
(3) The facility shall establish and implement a bed-hold policy and a readmission policy that reflect
at least the following:
(i) At the time of admission and again at the time of transfer for any reason, the facility shall verbally
inform and provide written information to the resident and the designated representative that specifies:
(a) the duration of the bed-hold policy during which the resident is permitted to return and resume
residence in the facility; and
(b) the facility's policies regarding bed-hold periods, which must be consistent with subparagraph (iii)
of this paragraph, permitting a resident to return.
(ii) At the time of transfer of a resident for hospitalization or for therapeutic leave, a nursing home
shall provide written notice to the resident and the designated representative, which specifies the
duration of the bed-hold policy described in subparagraph (i) of this paragraph.
(iii) A nursing home shall establish and follow a written policy under which a resident whose
hospitalization or therapeutic leave exceeds the bed hold period is readmitted to the facility
immediately upon the first availability of a bed in a semi-private room if the resident:
(a) requires the services provided by the facility; and
(b) is eligible for Medicaid nursing home services.
(iv) A nursing home shall establish and follow a written policy under which a resident who has
resided in the nursing home for 30 days or more and who has been hospitalized or who has been
transferred or discharged on therapeutic leave without being given a bed-hold is readmitted to the
facility immediately upon the first availability of a bed in a semi-private room if the resident:
(a) requires the services provided by the facility; and
(b) is eligible for Medicaid nursing home services
(4) With regard to the assurance of equal access to quality care, the facility shall establish and
maintain identical policies and practices regarding transfer, discharge and the provision of all required
services for all individuals regardless of source of payment.
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Volume: C
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Evaluating Nursing Home Neglect
Cases:
A Look At PHL 2801-d
www.lawyer-nursinghomeabuse.com
Analyzing the sad story...
who is the caller - standing issue
who is the target - hospice, long term, short term, assisted living, hospital, home
Statute of Limitation - med mal vs. 2801-d -- Zeides v. Hebrew Home, 300 AD2d
178 (1st Dep’t 2002) - death and disability tolls
hard to sift through the facts to identify possible claims
knowing the regs helps sorting the claims
young and old alike can be neglected
PHL 2801-d for nursing home issues
if a resident of a nursing home is deprived of their
rights an action may exist
a nursing home is defined as such in PHL 2801 - a
Whats so great about it??
remedial statute - punitive damages
facility providing therein nursing care to sick, invalid,
infirm, disabled or convalescent persons in addition to
lodging and board or health-related service, or any
combination of the foregoing, and in addition thereto,
providing nursing care and health-related service, or either
of them, to persons who are not occupants of the facility
no corporate shield
includes claims “to persons who are not occupants” which
means home health care cases many be covered under
2801-d
death as an injury
attorneys fees and costs
minimum damage
no medicaid lien if alive
Need a violation to make a case - like
Labor Law 241(6)
10 NYCRR 415 and 42 CFR 483 set minimum
standards - unlike med mal they are in black and
white
also PHL 2803-C residents rights
pressure sores & contractures (range of motion)
adequate and appropriate care covers other
claims like wandering
accidents
weight loss
malnutrition
dehydration
agreement
dignity
in addition to other claims
staffing
A WORLD OF PROBLEMS
coma
dementia
paraplegic
unwitnessed neglect
look at the agreement for venue and arbitration clauses
liens
good family - not right but how it is (no dumpers)
Some Home Care problems learned the
hard way
who is the “caregiver”
“discharge to Home”
Light Investigation
check out the entity - Department of Health and CMS report card
look for advertising and literature
“the sicker the better”
pictures
save costs on speculative claims - have client pay, pre-action OSC, don’t need LOA,
scanning
CALL Dr. Weingarten
Get a handle on the meds
Organizing and requesting meds - a chart or a computer helps -- lots of Meds!
48 CFR 483.75 clinical records
42 CFR 483.10, 415.22 and 415.3(c) -- 48 hour rule for resident or representative
and .75 pp
Tabbed binders - scanned records tabs
Case Value - Need to be trial ready
bedsores
minimal damages and attorneys fees
accidents
trial may be risky because of liens - 2
issues - alive and negotiations
length of suffering
alive
para or quad
making nursing homes safer
pictures
other factors like time to learn and
costs - need a machine!
NURSING HOME LITIGATION IN
NEW YORK: A VIEW FROM THE
DEFENDANT’S PERSPECTIVE

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

Public Health Law §2801-d
Common Law Negligence
Medical Malpractice
Breach of Contract
Negligent Hiring/Retention of Employees
Gross Negligence
Wrongful Death
A cause of action under Public Health Law (“PHL”)
§2801-d is potentially available in nursing home
cases for damages caused by deprivations of
“right[s] or benefit[s]” conferred by contract, or
Federal and/or State statute, code, rule or
regulation. PHL §2801-d(1) states that “[n]o
person who pleads and proves, as an affirmative
defense, that the facility exercised all care
reasonably necessary to prevent and limit the
deprivation and injury for which liability is
asserted shall be liable under this section.”


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
Creates a compensatory floor for violations of
rights (no less than 25% of the daily per-patient
rate under PHL §2807),
Permits the imposition of punitive damages for
willful or reckless disregard of resident rights.
Permits class certification pursuant to CPLR
Article 901 & 902.
Permit awarding of attorney’s fees in Court’s
discretion based upon the reasonable value of
the services rendered.
If a PHL §2801-d claim is asserted in the
Complaint, the defendant’s Answer should
contain an affirmative defense stating that it
invokes the protection of Public Health Law
§2801-d with respect to the cause(s) of
action for deprivation of the resident’s rights
and that it exercised all care reasonably
necessary to prevent and limit any
deprivation and injury to the resident.


CPLR §501 recognizes the right of parties to
contractually “fix” venue in advance of
litigation. See also, Greater New York
Automobile Dealers Ass’n. v. Environmental
Sys. Testing, Inc., 211 F.R.D. 71, 84 (E.D.N.Y.
2002)
Follow procedure for timely making motion to
transfer venue.



CPLR §511(b)-serve a Demand to Change Venue
either before or contemporaneously with its answer.
If Plaintiff fails to serve a written consent to change
venue within five days of service of the Demand to
Change Venue, Defendant must move change venue
within fifteen days of service of the Demand.
If the Plaintiff fails to serve a an affidavit establishing
that the county in which the action was commenced
is proper, the Defendant may file the venue motion in
the county where the action is pending, or the
transferee county. If, however, the Plaintiff serves
such an affidavit, the venue motion must be made in
the county where the action was commenced.
 In Marmet v. Health Care Ctr., Inc. v. Brown, 565
U.S. __, 231 S.Ct. 1201, 182 L.Ed.2d 42 (2012),
the U.S. Supreme Court struck down “public
policy” prohibitions against pre-dispute
agreements to arbitrate personal injury and
wrongful death claims against nursing homes as
inconsistent with and pre-empted by the
Federal Arbitration Act.


Marmet Decision invalidates PHL §2801-d(8)’s
prohibition against the waiver of a right to a jury
trial of PHL §2801-d claims; see Friedman v.
Hebrew Home for the Aged at Riverdale, 131
A.D.3d421, 13 N.Y.S.2d 896 (1st Dep’t
2015)[“Because defendant is engaged in interstate
commerce, the Federal Arbitration Act preempts
Public Health Law §2801-d (citation omitted)”].

Nursing homes will still need to establish that a
valid enforceable agreement to arbitrate was
effectuated under NY law to compel arbitration,
applying state contract and agency law principles.
See, Keith L. Kaplan, The U.S. Supreme Court’s
Marmet Decision and Its Potential Impact Upon
Personal Injury Claims Against New York Nursing
Homes, 17 NYSBA Health L.J. 34 (Summer/Fall
2012).

Proposed Revised CMS Regulation- 42 CFR
§283.70(n)-Facilities that accept
Medicare/Medicaid must ensure that binding
arbitration agreement is explained to the resident
(or representative) in a manner they understand
with resident (agent) acknowledging such
understand. Admission to the facility must not be
made contingent upon the resident or the resident
or the resident representative signing a binding
arbitration agreement.

Obtain copies of the chart, accident/incident
reports and employee statements, privileged
QA materials, 24 Hour Reports referencing
the resident, DOH Surveys/Plans of
Correction for the period at issue, materials
provided to and received from the DOH
regarding any investigations that may have
been conducted, billing records and the
pertinent policies and procedures.

Review the records in detail and determine
what the focus of the case will be—is it a falls
case, decubitus ulcer case, nutritional
management case or something else? Also,
determine if the case appears to be
defensible or whether it should be settled
early in the litigation.

Review records for possible liability of thirdparties/non-employee physicians- The
records should be assessed to determine
whether the conduct at issue involves alleged
wrongdoing committed by nursing home staff
or by non-employee, outside providers, such
as a private physician with attending
privileges at the nursing home.



Not addressed in any appellate level Decision to date.
Debatable as to whether Mduba should/will apply to
nursing home care.
PHL §2801-d liability is predicated upon
“deprivations” of resident rights or benefits created
by contract, statute or regulation, not departures
from accepted standards of medical care, see, Zeides
v. Hebrew Home for Aged at Riverdale, 300 AD3d
178, 179, 753 NYS2d 450 (1st Dep’t 2002)l but see
10 NYCRR §415.15(b), Medical Services, “[e]ach
resident shall remain under the care of a physician
and shall be provided care that meets prevailing
standards of medical care.”
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Photographs
Charting Irregularities
“Late entries”
Implementation of Physician Orders
Timeliness in Charting
Cross-referencing
Refusals of Care
Contact with Family
Social Work Notes
Attending Physician Involvement

If resident is transferred from hospital, check
the transfer documentation—Patient Review
Instrument- Provides information, usually
from an “independent” source, regarding the
resident’s condition immediately before
admission.

Review chart for Advanced Directives [e.g.,
Health Care Proxies, Do Not Resuscitate
(“DNR”) orders], as such may place limitations
on the available treatment interventions.

Review Laboratory Results and Diagnostic
Test Results- Important to setting up
medical defenses, especially in cases
involving skin breakdown and alleged
malnutrition.

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
Physician Notification
Consultant Involvement
Dietary Staff Involvement
Hospitals/Other Providers

Review the Facility Policies and Procedures
applicable to your case to ensure compliance.

Review for Timeliness/Accuracy of
MDS/CAA/CCP Preparation- Review for
timing in the preparation of the Resident
Assessment Instrument (RAI), which is
comprised of the Minimum Data Set (MDS)
and Care Assessment Areas (CAAs) and the
development of the Comprehensive Care Plan
(CCP). From day one of admission, the staff
must assess resident to identify problems.
The MDS will drive the care plan.
• The MDS 3.0 is a core set of screening, clinical, and functional
status elements (20 categories), including common
definitions and coding categories, which forms the foundation
of the comprehensive assessment of all residents of longterm care facilities certified to participate in Medicare or
Medicaid.
• The data collected from MDS assessments is also used for the
Medicare reimbursement system, many State Medicaid
reimbursement systems and to monitor the quality of care of
nursing home residents. Under MDS 3.0, the MDS must be
prepared within 14 days after admission (excluding readmissions in which there is no “significant change” in the
resident’s physical or mental condition), and within 14 days
after the facility determines, or should have determined that a
“significant change” in the resident’s physical or mental
condition occurred. See, 42 C.F.R. §483.20(b)(2). For
Medicare reimbursement, MDS must be completed at days 5,
14, 30, 60 and 90 and every 90 days thereafter.
• CAAs (Care Area Assessments) are structured,
problem-oriented frameworks of organizing MDS
information and examining clinically relevant
information about an individual. CAAs help identify
social, medical and psychological problems and form
the basis for individualized care planning. CAAs
analysis assists clinicians in deciding whether or not
to proceed to the plan of care. The 20 CAAs now in
use under MDS 3.0 are identical to the 18 RAP
problem areas from the former MDS 2.0, with the
addition of “Pain” and Return to Community Referral.”

Realistic and Measurable Care Plan GoalsReview the care plans to determine whether the
stated goals for the resident are measurable and
realistic in view of the resident’s medical and
psychological condition. Be on the lookout for
goals that are highly unlikely to be attainable for
the resident. If the defense involves the
contention that the resident’s condition was
spiraling downward from the date of admission,
a statement of unrealistic goals (e.g., a “return to
the community”) is not helpful toward that end.

Under proposed regulation, 42 CFR §483.21
requires, within 48 hours of admission, the
creation of a “baseline care plan,” providing
instructions and person-centered care of the
resident that meet professional standards of
quality care.

The final care plan must be completed by day
21 of the admission (developed within 7 days
of after completion of the comprehensive
assessment) and periodically reviewed and
revised by a team of qualified persons after
each assessment. See, 42 C.F.R.
§483.20(k)(2)(i)-(iii).

The CCP (Comprehensive Care Plan) The CCP
must contain the services that are to be
furnished to maintain the resident’s highest
practicable physical, mental and psychosocial
well-being, as well as any other services that
may otherwise be required, but not provided,
due to the resident’s exercise of rights,
including the right to refuse treatment. See,
42 C.F.R. §483.20(d).

The CCP is developed by an inter-disciplinary
team (including the attending physician, a
registered nurse with responsibility for the
resident), other appropriate staff in
disciplines as determined by the resident’s
needs), in conjunction with the resident
and/or his/her representatives.

Under proposed regulation, 42 CFR §483.21,
the interdisciplinary team also must include a
nurse aide with responsibility for the
resident, a member of the food and nutrition
services staff and a social worker.

Review the PRIs, resident assessments, MDS+,
care plans and determine whether the
interventions contained therein are
documented in other portions of the chart,
such as in the nursing notes, physician orders
(for interventions requiring a physician’s
order), MARs, TARs and CNA accountability
records.

Similarly, review treatment/medication orders
and the corresponding MARs, TARs, CNA
Accountability Records to verify whether
changes to care plan were documented and
implemented.



If DOH investigation was done, obtain a So
Ordered Subpoena to obtain a Certified Copy
of the DOH File (after case is assigned to
judge overseeing discovery)
Factual Findings of DOH Reports are
Admissible at Trial pursuant to PHL §10
Consider deposing the DOH investigator as
non-party witness (a So Ordered Subpoena
will be required).

Review Basic Information Regarding Facility
Operations- Review with Administrator & DON
the information typically delved into discovery—
facility capacity, floor/unit breakdown, any
unique or specialized services provided by the
facility (e.g., Ventilator Unit, TBI patient unit),
percentage breakdown of long-term versus short
term residents, staffing numbers on all units
during all shifts, departments and services
provided, wound care rounds/wound care team
membership. Find out the events that occur at
the facility on a “typical day.”

Meeting with Nursing Home Personnel- Early on,
visit the facility and meet with the Administrator,
Director of Nursing and pertinent individuals
involved in the resident’s care, as these
individuals may be your most important EBT
and/or trial witnesses and meet with those
individuals as well. Determine at the outset
those individuals who will likely best represent
the facility at trial and can articulate the services
provided and set forth the positive aspects of the
facility.


Discuss Litigation Process- Most nursing
home administrators and DONs have seen
their share of lawsuits, but review the
litigation process and elements of the claims
in the case.
Discuss what appear to be the strengths and
weaknesses of the case.



Discuss what appear to be the strengths and
weaknesses of the case.
Meet individuals with independent recall of the
resident and the family.
If the case involves an incident/accident that
occurred with the involvement/in the presence of
a staff member (e.g., a fall from a wheelchair, fall
from a Hoyer lift), meet with the staff member to
obtain a firsthand account of the event and to
assess their credibility and how they may appear
at an E.B.T. or before a jury.

Motivations for Lawsuit- Find out if there
were problems/issues with the resident
and/or his/her family that may have
precipitated a trip to the plaintiff’s attorney's
office. Find out if there are any outstanding
financial obligations between the facility and
the resident/family, collection letters,
collection lawsuits, etc.

Get a Sense of the Environment at the
Facility- At your visit, try to get a sense of
the nursing home’s environment—is there
pride in the facility by the administrator and
DON? Do the employees and residents seem
happy? Frequency of staff turnover.
--OBRA Regulations-Federal Regulations
--New York State Regulations issued by the
New York State Department of Health
--State Operations Manual- “The Facility Guide
to OBRA Regulations, and the Long Term Care
Survey Process”

A Pressure Ulcer is any lesion caused by
unrelieved pressure that results in damage to
the underlying tissue(s) . . .
483.25 Quality of Care.
Pressure sores. Based on the Comprehensive
Assessment of a resident, the facility must ensure that:
A resident who enters the facility without pressure sores does
not develop pressure sores unless the individual’s clinical
condition demonstrates that they were unavoidable; and
A resident having pressure sores receives necessary
treatment and services to promote healing, prevent infection
and prevent new sores from developing.
--42 CFR §483.25(c)(1) & (2).






42 CFR §483.25 Quality of care and quality of care
(d)(4) Skin Integrity—(i) Pressure ulcers. Based on the
comprehensive assessment of a resident, the facility must ensure
that—
[A] A resident receives care, consistent with professional
standards of practice, to prevent pressure ulcers and does not
develop pressure ulcers unless the individual’s clinical condition
demonstrates that they were unavoidable.
[B] A resident with pressure ulcers receives necessary treatment
and services, consistent with professional standards of practice,
to promote healing, prevent infection and prevent new ulcers
from developing.
(c)
Pressure sores. Based on the comprehensive
assessment of a resident, the facility shall ensure that:
(1) A resident who enters the facility without pressure
sores does not develop pressure sores unless the individual’s
clinical condition demonstrates that they were unavoidable
despite every reasonable effort to prevent them; and
(2) A resident having pressure sores receives
necessary treatment and services to promote healing, prevent
infection and prevent new sores from developing.
10 NYCRR §415.12(c)(1) & (2).





Regarding nosocomial (in-house acquired)
pressure ulcers, SOM F314 requires facilities to
demonstrate that the ulcer developed despite the
fact it had:
Evaluated the resident’s clinical condition and
pressure ulcer risk factors;
Defined and implemented interventions that are
consistent with resident needs, goals, and
recognized standards of practice;
Monitored and evaluated the impact of the
interventions; and
Revised the approaches as appropriate.






Advanced Age/aging skin
Chronic disease (e.g., DM, PVD)
Impaired mobility and limited activity
Incontinence
Poor nutritional and hydration status/poor
absorption
Sensory impairment




Pressure
Friction
Shearing
Moisture

National Pressure Ulcer Advisory Panel3/3/10- Consensus Conference ConferenceThe Conference participants unanimously
determined that “not all pressure ulcers are
avoidable” where pressure cannot be relieved
and perfusion cannot be improved.




There are some individuals in which pressure ulcer
development is unavoidable.
Conditions were identified that may lead to unavoidable
pressure ulcers (e.g., hemodynamic instability and
impaired perfusion); however these conditions do not
make pressure ulcers inevitable. The duty to provide
care remains.
There are situations and conditions that limit preventive
interventions.
Skin failure at end-of-life is not the same as pressure
ulcers.
Joyce M. Black, Ph.D., et. al., Pressure Ulcers; Avoidable or
Unavoidable? Results of the National Pressure Ulcer Advisory Panel
Consensus Conference, Ostomy Wound Management, Feb. 2011 at
P. 36.
 Review chart to see if the pressure ulcers at issue were
acquired outside the facility or nosocomial.
 Verify that the facility performed Braden Scale
assessments upon admission and periodically-(1) Sensory
perception, (2) moisture, (3) Activity, (4) mobility, (5)
nutrition and (6) friction and shear.
 Was the resident deemed to be at some level of risk for
pressure ulcer development and was he/she care planned
for ulcers?
 “Pressure redistribution” support surfaces?
 Offloading (turning and re-positioning off the sacrum)
 If the case involves a nosocomial ulcer,
determine the size and stage of the ulcer
upon discovery, ensure that the staff
obtained treatment orders from the
physician, utilized additional nursing
measures re ulcer care, care planned.
 Is the lesion actually a pressure ulcer?
 Ensure that the resident’s ulcer seen by
wound care nurse weekly and
documented.
 Physician involvement in the ulcer care.
 Dietary Department involvement in the care.
 Check whether there were changes to aspects of
the resident’s medical condition that
corresponded with the emergence of the
ulcers—e.g., illness, infection, changes in eating
habits/dysphagia/PEG placement, changes in
cardiac or renal status, abnormal labs,
particularly protein and Albumin levels.

Review the record for documentation of
wound tracking—verify whether weekly
measurements were taken for length, width
and if applicable, depth. Also look for
physical descriptions of the wounds. Verify
whether treatment orders were changed when
treatments were ineffective in wound healing,
or when the wound worsened over a period of
time. Ensure that changes to wound orders
are reflected in the TARs.
 Check documentation of CNA records—particularly
offloading (turning and positioning)
 Were changes made to the plan of care when certain
treatments proved ineffective?
 Were outside consults brought in to assess the
wounds?—e.g., vascular surgery, podiatry, etc.
 Did ulcers emerge shortly before the resident died?
 Was the resident frequently being sent out to the
hospital?





42 CFR §483.25(h)(SOM F323)
The facility must ensure that –
(1) The resident environment remains as free
of accident hazards as is possible; and
(2) Each resident receives adequate
supervision and assistance devices to prevent
accidents
Proposed Regulation re Accidents is 42 CFR
§483.25(d)(10).

SOM Definition of “Supervision/Adequate
Supervision” (F 323)- refers to an intervention
and means of mitigating the risk of an accident.
Facilities are obligated to provide adequate
supervision to prevent accidents. Adequate
supervision is defined by the type and frequency
of supervision, based on the individual resident’s
assessed needs and identified hazards in the
resident environments. Adequate supervision
may vary from resident to resident and from time
to time for the same resident. Tools or items
such as personal alarms can help to monitor a
resident’s activities, but do not eliminate the
need for adequate supervision.

42 CFR §483.15
 The facility must provide a safe, clean
comfortable and homelike environment,
allowing the resident to use his or her
personal belongings to the extent
possible.
This provision is located at Proposed Revised Federal
Regulation-42 CFR §483.10(d)(3)(i)

42 CFR §483.25(a)
 Each resident must receive and the facility must
provide the necessary care and services to attain or
maintain the highest practicable physical, mental and
psychosocial well-being, in accordance with the
comprehensive assessment and plan of care. Unless
“clinically unavoidable”, a resident’s abilities in ADLs
cannot diminish, including in the areas of:





Bathing, dressing, grooming;
Transfer and ambulation
Toileting
Eating
Using speech, language or other functional communication
systems

42 CFR §483.13(a) & (F222 of SOM).
 Proposed Regulations, the Anti-Restraint section has
been moved to 42 CFR §483.25(d)(1), “[w]hen the use of
restraints is indicated, the facility must use the least
restrictive alternative for the least amount of time and
documents ongoing re-evaluation of their need for
restraints.”

 Proposed Regulation 42 CFR §483.25(d)(2)-requires the
facility to attempt to use alternatives prior to installing a
side or bed rail, assess the risk for entrapment from bed
rails prior to installation and review the risks and benefits
of bed rails with the resident or resident’s representative
and obtained informed consent prior to installation.

New York state regulation is arguably more restrictive than
the federal regulation, stating physical restraints may be
“used only in “unusual circumstances” (emphasis added)
and only after all reasonable less restrictive alternatives
have been considered and rejected for reasons related to
the resident’s well-being. . .,” 10 NYCRR §415.4(a)(2)(iii).
Furthermore, the regulation states that “[l]ess restrictive
measures that would not clearly jeopardize the resident’s
safety shall not be rejected before a trial to demonstrate
whether a more restrictive restraint would promote greater
functional independence.” 10 NYCRR §415.4(a)(2)(iii).





Need to provide accident-free environment to
the extent possible
Need to “supervise” residents, but not
obligated to provide constant 1:1 monitoring
Environment must be “homelike”
Must try to improve residents’ ability to
transfer and ambulate, but note that
improved strength with the cognitively
impaired resident can increase fall risk
Cannot “restrain” to prevent falls
 Need to review not only the chart, but
also the complete Accident/Incident
Investigation file.
 If the case involves a fall which occurred
while the resident was not being
attended to by the staff, check the chart
to establish a “timeline” of events that
occurred before the fall, documenting
staff treatment/involvement with the
resident—check MARs/TARs, CNA
Accountability records.

Identify the caregivers involved with
the resident at the time of the fall.
 Check the chart for other falls
that preceded the injurious fall
in your case—look for
documentation of each fall in
the Progress Notes, Care Plan
(and possible changes to care
plan), physician notification re
prior falls/unsafe behaviors.
 Check
the rehabilitation records
to verify whether the resident’s
ambulatory and transfer status
was improving over the course of
PT/OT, which may have the
unintended consequence of
increasing their risk of falling.
 In cases in which the primary claim
is the failure to use physical
restraints, let the plaintiff advance
such a claim and pursue dismissal
on summary judgment—the case
law has been favorable in this
regard, as it is almost never
acceptable to use a physical
restraint to prevent falls, such as
fully raised side rails on a bed.
 Meet with the pertinent
caregivers involved in the
Accident/Incident reports—they
may provide additional helpful
or harmful information about
the fall that is not readily
apparent from the
Accident/Incident materials.


Immediately upon receipt of the Note of
Issue, review the case file not only to
determine whether you are owed outstanding
discovery, but to thoroughly examine whether
grounds exist for summary judgment
dismissing the entire case or partial summary
judgment.
Consider the judge who will be deciding the
motion—will the judge give strong
consideration to your arguments or let the
jury decide the issue.

Unsubstantiated “Falls”- Lorber v. Prospect Park Nsg.
Home, 289 A.D.2d 303, 734 N.Y.S.2d 865 (2d Dep’t
2001). The Appellate Division, Second Department
affirmed the dismissal of a case brought by the estate
of a nursing home resident, wherein it was claimed
that he fell from bed, fracturing his tibia and fibula.
There was no evidence to substantiate that a fall
occurred, as the resident was found in bed with
edema to foot and ankle. The Court held that the
lack of evidence to substantiate the fall warranted the
granting of summary judgment.

“Negligent Supervision” Claims- In Seltzer v. Sprain Brook
Manor Nursing Home, N.Y. County Index No. 104342/04, Order
dated February 2, 2006 [Lehner, J], rearg. den. in Order dated
May 1, 2006, the Court granted the defendant nursing home’s
motion for summary judgment, rejecting the plaintiff’s claim that
the nursing home should have provided “close supervision,”
including one-to-one nurse-patient supervision, line of sight
supervision where the resident is in constant view of caregiver or
15 to 30 minute checks. The Court found that plaintiff’s expert
failed to identify any generally accepted standards of practice in
nursing homes relating to supervision of residents with
confusion or any reference to his own personal knowledge
acquired through professional experience demonstrating that
nursing homes have implemented such a standard. The Court
also held that nursing homes are not required to monitor
resident activities 24 hours per day.

Ciccotto v. Fulton Commons Care Ctr., Nassau
County Index No. 732/2012, Order dated Nov.
12, 2014 [Woodard, J.] [“Although plaintiff’s
expert identifies what she believes to be a
number of deficiencies in defendant’s
assessment, treatment and supervision of
plaintiff’s decedent, she fails to offer any
explanation as to how the falls would have been
prevented if these alleged deficiencies had not
occurred, other than through constant and
continuous observation of decedent at all times
(Yamin v. Baghel, 284 AD2d 778 [3d Dept
2001]). In the absence of causation, plaintiff’s
claims of negligence cannot be sustained.”].

Failure to “Restrain” Cases- Such claims are
usually made contemporaneously with claims of
deficient monitoring. Assess the viability of
contending (with your geriatric expert) that the
use of a restraint would not have been indicated
to treat the resident’s medical symptoms, as
required pursuant to 42 C.F.R. §483.13(a);
Mitchell v. Grace Plaza of Great Neck, 115 A.D.3d
819, 982 N.Y.S.2d 361 (2d Dep’t 2014); Petralia
v. Glenhaven Health Care Org.. Nassau Co. Index
No. 13090/2011 (Sup. Ct. Nassau Co. 2014)
[Phelan, J.]

Can be a challenge to win on summary
judgment if the resident develops skin
ulcer(s) during the course of residency, or if a
pre-existing ulcer worsens during the
residency, but it can be done. See Estate of
Keller v. MS Acquisition I. LLC, Index No.
3116/11, Sup. Ct., Westchester Co. (July 1,
2013) Novick v. South Nassau Comm. Hosp.,
Queens Co. Index No. 3507/08, Order dated
Feb. 4, 2013.


Better chance of success upon summary
judgment if ulcers are confined to heels, as
defense can contend that the ulcers developed as
the result of peripheral vascular disease,
arteriosclerosis, etc. See Iciano v. Franklin Nsg.
Home, 117 A.D.3d 405, 985 N.Y.S.2d 26 (1st
Dep’t 2014); Negron v. St. Barnabas Nsg. Home,
105 A.D.3d 501, 963 N.Y.S.2d 101 (1st Dep‘t
2013) Bullard v. St. Barnabas Hosp., 27 A.D.3d
206, 810 N.Y.S.2d 78 (1st Dep’t 2006);
Hernandez v. Hochman, 56 A.D.3d 427, 428, 866
N.Y.S.2d 777, 778 (2d Dep’t 2008).

Summary judgment may be achievable if the
resident enters the facility with ulcers,
remains there over a short period of time
and if there is no worsening in their
condition. See, e.g., Lutwin v. Perelman,
Nassau Co. Index No. 12736/06, Order
dated March 31, 2009 [Mahon, J.], aff’d in
part, 76 A.D.3d 958, 907 N.Y.S.2d 505 (2d
Dep’t 2010).

Standards for awarding punitive
damages in a medical malpractice and
PHL §2801-d appear to be very similar
if not identical, although trial level
case law has not articulated a clear
standard for the awarding of punitive
damages under PHL §2801-d.

In malpractice cases, punitive damages may be
awarded where the conduct of the party being held
liable evidences a high degree of moral culpability
(citations omitted) or where the conduct is so
flagrant as to transcend mere carelessness
(citations omitted), or where the conduct
constitutes willful or wanton negligence or
recklessness (citations omitted).” Rey v. Park View
Nsg. Home, Inc., 262 A.D.2d 624, 627, 692
N.Y.S.2d 686, 689 (2d Dep’t 1999); see also, Hill v.
2016 Realty Assocs., 42 A.D.3d 432, 839 N.Y.S.2d
801 (2d Dep’t 2007).

Under PHL §2801-d, punitive damages may
be awarded upon proof of willful or reckless
disregard of the resident’s rights.

Standards for Punitive Damages Awards
under PHL §2801-d are identical to those
under common law-Butler v. Shorefront
Jewish Geriatric Ctr., 33 Misc. 686, 932
N.Y.S.2d 672 (Sup. Ct. Kings Co. 2011); Keith
L. Kaplan, Same Difference: Punitive Damages
Against Nursing Homes Under Common Law
and Statute, Nassau Lawyer, April 2012, P. 5.
 Removes
a non-insurable
element of damages from the
case.
 Diminishes the potential case
value

Removes the possibility of punitive damages
from the case and thus rids the plaintiff and/or
the trial judge of any leverage over the defense
counsel and insurance carrier at trial as to this
issue. See Whitehurst v. Brooklyn-Queens
Nursing Home, 27 NYJVRA 5:C1 (Kings Co. Oct.
8, 2009) (a/k/a Danzi), $15,000,000.00 punitive
damages award under PHL §2801-d(2); Mueller
v. Elderwood Health Care at Oakwood, 31
Misc.3d 1210(A), 929 N.Y.S.2d 201, 2011 WL
1366292 (Unreported Case)-Court upholds jury
award of $200,000 under PHL §2801-d(2)




Review dates of care at issue in case and
determine whether any of the care falls outside
of the applicable limitations periods.
Are there “negligence” claims asserted that would
be time-barred if such allegations were deemed
to be for medical malpractice?
PHL §2801-d claims- If some of the care at
issue occurred beyond three years of the
lawsuit’s commencement date, consider a motion
to dismiss based upon statute of limitations
Continuous Treatment Doctrine Does not Apply
to PHL §2801-d Claims
Comprehensive Pain Management Associates
Phillip Fyman, M.D. and Alexander Weingarten, M.D., PC
2001 Marcus Avenue, Suite S20 • New Hyde Park, NY 11042 (516) 358-HOPE/4673 • Fax# (516) 358-0319
121 Eileen Way • Syosset, NY 11791 • (516) 496-4964 • Fax# (516) 496-4951
Phillip N. Fyman, M.D.
Alexander E. Weingarten, M.D.
Louis Malesardi, P.A.-C.
Diplomates of:
American Board of Anesthesiology
Subspecialty Certification in Pain Management
American Academy of Pain Medicine
November 10, 2015
Perception of Pain in the Unconscious State
By Alexander E. Weingarten, M.D.
The following is an outline of the lecture titled above. The
subtopics to be covered include:
1.
Definition of coma, vegetative state, and minimal
conscious state.
2.
Overview of pain pathways in the brain during the
unconscious state.
3.
Bedside test to determine the perception of pain during
the unconscious state.
4.
Ethical considerations in the treatment of pain in
patients in the unconscious state.
5.
Conclusion and closing remarks.
Respectfully,
Pain Perception in the
Uncons cious State
Alexander Weingarten, MD
Pa in Ma na gement / Anes thes iologis t
Tris ta te Experts Corp
121 Eileen Wa y
Syos s et, NY
Introduction
The following lecture will cover the topic of pa in perception
in pa tients dia gnos ed with:
1. Coma tos e s ta te
2. Vegeta tive s ta te
3. Minima lly cons cious s ta te (MCS)
Diagnosis and Recognition
Until recently there ha s been a n a bs ence of reports or clea r
neurophys iologica l ma rkers of cons cious nes s in thes e
pa tient groups a nd a s a res ult the burden of proof lies with
the pra ctitioner a s to whether there is a ny cons cious
experience left in pa tients in thes e a ltered cons cious s ta tes .
Ethical Considerations
There a re ethica l cons idera tions tha t need to be a ddres s ed if
it is proven tha t thes e pa tients a re indeed experiencing pa in
a nd the s ubs equent trea tment thereof.
Stages of Decreased Level of Consciousness
1. Coma -ca n be a rous ed, but a re believed to be
uncons cious , eyes rema in clos ed, a bs ence of volunta ry
beha vior a nd la ngua ge a bility, no s leep or wa ke cycles .
2. Vegeta tive s ta te-ca nnot be a rous ed, s ponta neous eye
opening, no purpos eful beha vior or res pons e to s ens ory
s timuli. No evidence of la ngua ge comprehens ion.
3. Minima lly cons cious s ta te-fluctua ting levels of
cons cious nes s .
Unconsciousness
Until recently the uncons cious s ta te wa s defined in es s entia lly nega tive terms ,
na mely ins ens ible, inca pa ble of res ponding to s ens ory s timuli, a nd of ha ving
s ubjective experiences . There ha s a lwa ys been the ques tion a s to how one knows
tha t a pers on is uncons cious i.e. tha t he/ s he is inca pa ble of res ponding to s ens ory
s timuli if you ca nnot ga in a cces s to his / her s ubjective experiences .
The neurophys iologis t Sherrington, opined tha t mus cle wa s the cra dle of
recogniza ble mind, s uch tha t if the mus cles of s peech or thos e involved in writing
do not communica te in a fa s hion tha t ca n be unders tood, it is legitima te to
conclude tha t there is no experience for them to communicate.
Vegetative State
In 1972 J ennett a nd Plum put forth a point of view with
rega rd to a group of pa tients who owing to improved a cute
a nd intens ive ca re, ha d s urvived s evere tra uma tic or is chemic
bra in da ma ge. Such pa tients s urvived in a s leep-like
ins ens ible s ta te, neither uncons cious nor in coma , but never
s how evidence of a working mind. They a re wa keful without
being a wa re.
Vegetative State (cont’d)
Pa tients in a vegeta tive ma nifes t micros copic bra in da ma ge mos t s evere
in the cortex of the bra in a nd les s s o in the tha la mus . The lea s t da ma ge
is to the bra ins tem. The electroencepha logra m (EEG) s hows a ra nge of
pa tterns tha t ha ve in common no regula r cha nge with reference to a
cha nging beha viora l s ta te. Evoked potentia ls a re norma l in the bra ins tem
but a re a ltered in the cortica l level in res pons e to s oma tos ens ory s timuli.
Pos itron emis s ion tomogra phy (PET s tudies ) s how tha t cognitive function
is los t beca us e the regiona l cerebra l meta bolic ra te is les s tha n ha lf of the
norma l va lue.
Comatose State
By definition the comatos e s tate always res olves
within 2-4 weeks leading to either a patient’s
death or improved level of cons cious nes s .
Persistent Vegetative State
Refers to a n ongoing vegeta tive s ta te tha t la s ts a t lea s t one
month from the time of ons et. When the vegeta tive pers is ts
for 1 yea r a fter a tra uma tic bra in injury or 3 months following
other types of bra in injury, it is genera lly cons idered highly
unlikely tha t the individua l will ever recover.
Clinical Study
A s tudy by La ureys in the yea r 2000 recorded bra in a ctivity from a pa tient in the
vegeta tive s ta te a nd this bra in a ctivity recording wa s contra s ted with hea lthy
control s ubjects a nd wa s s ubs equently compa red to the s a me pa tient when he did
recover. An a na lys is of the bra in a ctivity s howed tha t in contra s t to hen this
pa tient wa s in a vegeta tive s ta te, both the hea lthy controls a nd the pa tient while
recovering ha a s pecific pa ttern of cortica l tha la mic a ctivity. This s tudy s ugges ted
tha t while the pa tient wa s in the vegeta tive s ta te he wa s in fa ct fully uncons cious .
Minimally Conscious State
Dis tinguis hed from the vegeta tive s ta te by the pres ence of
one or s evera l s igns a bout s elf or the environment. For
exa mple, thes e pa tient ca n follow s imple comma nds , they
ca n recognize verba l comma nds a nd provide yes or no
res pons es by ges ture or movements tha t s eem to be beyond
mere reflexes .
Testing in Conscious vs. Unconscious Patients
1. Cons cious patients - heavily relies on intros pective reports (indirect evidence of a given
cons cious content.
2. Uncons cious patients A. us e of bodily or behavioral s ignals which m ay be interpreted as s igns of
cons cious nes s s uch as increas ed arous al, reflexes or neural activations .
B. Als o involves us e of brain s canners , EEG, eye tracking, galvanic s kin res pons e, or
reflexes .
C. The s ignals received in the uncons cious s tate are even m ore indirect in term s
of verifying cons cious activity (defens e argum ent) . However this is not neces s arily an
im pos s ible s ituation in identifying levels of cons cious nes s .
Future Directions
Functiona l MRI’s ha ve been s hown to s ucces s fully predict the
pres ence of perception to color or a vis ua l s timulus from
s igna ls obta ined from loca l regions of the vis ua l cortex. This
tes t hold the promis e of a chieving importa nt improvements
in pa tients with reduced levels of cons cious nes s .
Pain
The s ens a tion of pa in lea ds to a res pons e tha t is ca lled s uffering. One ma y
experience pa in without s uffering s uch a s the res pons e a chieved through yoga
a nd other philos ophica l or ps ychologica l techniques . Suffering without phys ica l
pa in is the ha llma rk of depres s ion a nd other ps ychologica l dis orders . In the
cons cious s ta te it is ea s y to infer the extent of the pa in from the degree of its
cons equent ma nifes ta tion a s s uffering.
But wha t a bout the revers e, if the voice of s uffering ca nnot be hea rd, either in the
s poken word or in more tha n rudimenta ry reflex res pons e to a noxious s timulus .
Is it wa rra nted to conclude tha t the perception of pa in is not pres ent?
Neuroanatomy
A va riety of nerve endings tha t res pond to mecha nical or therma l s timuli a nd give
ris e to a n unplea s a nt (pa inful or noxious ) s enta tion ha ve been identified in the
s kin, the blood ves s els , the mus cles , the covering of bone a nd joints , a lmos t
everywhere in the body except in the bra in its elf. The s timuli s o elicited tra vel to
the centra l nervous s ys tem over finely myelina ted or unmyelina ted nerve fibers .
There they connect with a s econd order neuron in the dors a l horn of the s pina l
cord or in the medulla of the bra ins tem in the ca s e of pa in fibers from the fa ce,
coverings of the bra in etc. The s econd order neurons in the s pina l cord a s cend
over a network of rela y neurons to the tha la mus in the bra in from whence there
a re reciproca l connections with the cortex.
Pain Pathway to the Brain
The Recognition and Measurement of Pain
An ea rly tes t to qua ntify the res pons e to a pa inful s timulus involves us ing a n
electromyogra ph with s urfa ce electrodes pla ced over the mus cles res pons ible for
s uch withdra wa l. The s ize of this flexion res pons e does correla te with s ubjective
mea s ures of pa in s ens a tion.
Other pa in indica tors tha t ha ve been us ed in eva lua ting a bra in injured pa tients
include:
1. Fa cia l expres s ions .
2. Body movements .
3. Mus cle tens ion.
Complications from Pain in Brain-Injured Patients
1. Altera tion of cerebra l perfus ion which ca n lea d to perma nent bra in da ma ge.
2. Increa s ed s tres s res pons es compromis ing the bra in.
3. Pulmona ry complica tions .
4. Immunos uppres s ion.
5. Thrombotic events (blood clots ).
The goa l to prevent thes e complica tions is to a chieve a ppropria te pa in relief
without compromis ing neurologica l a s s es s ments . Therefore pa in a s s es s ments
mus t be a s a ccurate a s pos s ible.
Nociceptive Coma Scale (NCS)
Developed to detect pa in in pa tients with dis orders of cons cious nes s . This is one
of the mos t relia ble tes ts which ha s been developed to a s s es s pa in in pa tients
recovering from coma . The s ca le cons is ts of obs erva tion of motor, verba l a nd
vis ua l res pons es to pa in s timula tion a s well a s fa cia l expres s ion. Its tota l s core
ra nges from 0-12. Initia lly brea thing res pons es were a ls o a s s es s ed but la ter
dis ca rded due to the difficulty to relia bly a s s es s brea thing pa tterns in pa tients not
benefiting from res pira tory monitoring devices .
Protocol of the Nociception Coma Scale
Motor response
3- Localis ation to painful s tim ulation
2- Flexion withdrawal
1-Abnorm al pos turing
0- None/ flaccid
Verbal response
3- Verbalis ation (intelligible)
2- Vocalis ation
1- Groaning
0- None
Visual response
3- Fixation
2- Eye m ovem ents
1- Startle
0- None
Facial expression
3- Cry
2- Grim ace
1- Oral reflexive m ovem ent/ s tartle res pons e
0- None
Nociception Coma Scale (cont’d)
The initia l s tudy to va lida te the nociception com a s ca le wa s a pros pective m ulticentric s tudy with
pa tients recruited from a cute ca re neurology, neura l reha bilita tion, a nd nurs ing hom e centers . The
res pons es of 48 s everely bra in injured pa tients were obs erved (28 pa tients in the vegeta tive s ta te a nd 20
pa tients in the m inim a lly cons cious s ta te). Age ra nge wa s 20 to 82 yea rs old, 17 of tra um a tic etiology.
The noxious s tim ula tion us ed wa s pres s ure a pplied to a fingerna il. The res ults dem ons tra ted good
correla tion between the Nociception Com a Sca le a nd other va lida ted pa in s ca les tha t ha ve been us ed in
the pa s t. However, contra ry to the other pa in s ca les the NCS wa s s ignifica ntly different a ccording to the
clinica l entity. It wa s a ble to differentia te beha vior pa tterns in the m inim a lly cons cious s ta te vers us the
vegeta tive s ta te. It wa s found tha t the s core in vegeta tive s ta te pa tients ra nged from 1 to 4 a s com pa red
to m inim a lly cons cious s ta te pa tients whos e s core ra nged from 2 to 8. So indeed vegeta tive s ta te
pa tients typica lly m a nifes t les s com plex beha viors for exa m ple a bnorm a l pos turing a nd ora l reflex
m ovem ents a s com pa red to m inim a lly cons cious s ta te pa tients who exhibit loca liza tion to noxious
s tim ula tion, intelligible verba liza tions etc.
NCS (cont’d)
Minima lly cons cious s ta te pa tients ha ve to s ome extent pres erved a n
integra ted midbra in proces s ing in res pons e to noxious s timula tion
s ugges ting pos s ible cons cious experience of pa in. Therefore, the NCS a s
a tool for detecting pa in in thes e pa tients is therefore of medica l a nd
ethica l importa nce tha t will a llow a better s pecifica tion of the beha viora l
pa tterns linked to the pa in experience in both minima lly cons cious s ta te
pa tients a nd vegeta tive s ta te pa tients . This s ca le ca n a ls o be us ed to
monitor the ins titution of pa in ma na gement in order to a void over or
under-s eda tion.
New Developments
Recently there have been s tudies us ing electroencephalographic
parameters as an adjunct to monitoring the effects of commonly us ed
s edatives and analges ic drugs in critically ill patients . The res ults
s how that painful s timuli and s edative analges ic drugs are as s ociated
with s ignificant changes in the EEG parameters s ugges ting that the
EEG can be integrated as part as pain management. Previous s tudies
have demons trated that EEG parameters could help to s ome extent in
determining the level of cons cious in s everely brain injures patients .
However no s tudy have inves tigated its efficacy in detecting pain.
Therefore further inves tigations are needed.
New Developments (cont’d)
Owen et’al recently described the use of
functional MRIs to detect consciousness in
a patient diagnosed as being in a vegetative
state. There were no differences found in
terms of brain activation between vegetative
state patient and healthy volunteers.
Therefore functionals MRIs may permit the
identification of intentional brain activations
at the single subject level without requiring a
reliable motor response.
sfdd n
Conclusions
1. Recent s tudies ha ve s ugges ted tha t bra in injured pa tients ma y be
a ble to perceive pa in even if they a re in a n a ppa rent vegeta tive s ta te.
2. It is therefore importa nt to a s s es s a nd trea t their pa in when indica ted.
3. There is limited evidence of pa in indica tors for bra in injured pa tients .
4. Recent s tudies us ing PET s ca ns a nd functiona l MRIs ca n illus tra te the
phenomena of pa in in the uncons cious pa tient.
5. The Nociception Coma Sca le rema ins the mos t relia ble beds ide tes t
to a s s es s the pres ence of cons cious pa in.
Bibliography
1.
Roulin, Ma rie-J os e, Ra m elet, Anne-Sylvie, Pa in Indica tors In Bra in-Injured Critica l Ca re Adults : An Integra tive
Review. Aus tra lia n Critica l Ca re (2012) 25, 110-118.
2.
Overga a rd, Morten, How ca n we know if pa tients in com a , vegeta tive s ta te or m inim a lly cons cious s ta te a re
cons cious ? Progres s in Bra in Res ea rch, Vol. 177, 11-19.
3.
Mcquillen MP, Ca n People Who Are Uncons cious Or In The “Vegeta tive Sta te” Perceive Pa in? J ourna l
Article(2007).
4.
Schna kers , Ca roline, Cha telle, Ca m ille, Ma jerus , Steve, Gos s eries , Olivia , De Va l, Ma rie, La ureys , Steven,
As s es s m ent And Detection Of Pa in In Noncom m unica tive Severely Bra in-Injured Pa tients . Experts Reviews
Ltd (2010) 1725-1731.
5.
Schna kers , Ca roline, Cha telle, Ca m ille, Ma jerus , Steve, Whyte, J ohn, La ureys , Steven. A Sens itive Sca le To
As s es s Nociceptive Pa in In Pa tients With Dis orders Of Cons cious nes s , Neurol Neuros urg Ps ychia try
(2012)83: 1233-1237.
6.
Da ntz, Beza lel, Ca s e Pres enta tion: Pa in, Suffering a nd the Uncons cious Pa tient. Ethics Rounds (1999)17,
301.
7.
La ureys , Steven, Fa ym onville, M.E., et a l, Res tora tion of Tha la m ocortica l Connectivity After Recovery From
Bibliography (cont’d)
8. Sherrington, C., Ma n On His Na ture. Dorla nd’s Illus tra ted Medica l Dictiona ry (1953)161.
9. J ennett & Plum , Pers is tent Vegeta tive Sta te After Bra in Da m a ge. LANCET (1972)734-737.
10. Owen, A, Colem a n, M, et a l. Detecting Awa renes s in the Vegeta tive Sta te. Science (2006)1402.
PRESENT POSITION: Comprehensive Pain Management Associates- Partner
Phillip Fyman, M.D. and Alexander Weingarten, M.D., PC
121 Eileen Way, Syosset, NY 11791
EDUCATION:
Queens College
Queens, NY
1972-1976, B.A.
State University of New York, Upstate Medical Center
1976-1980, M.D.
HOSPITAL TRAINING:
Location:
L.I. Jewish-Hillside
Medical Center
New Hyde Park, N.Y.
Intern
Internal
Medicine
07/80-06/81
L.I. Jewish-Hillside
Medical Center
New Hyde Park, N.Y.
Resident
07/81-06/83
Anesthesiology
Children’s Hospital
National Medical Center
Washington, D.C.
Pediatric
07/83-06/84
Fellowship
Anesthesiology
PROFESSIONAL APPOINTMENTS:
Staff Anesthesiologist
L.I. Jewish-Hillside Medical Center
New Hyde Park, N.Y.
A Teaching Affiliate of Albert Einstein College of Medicine
1984-1991
Clinical Instructor of Anesthesiology
S.U.N.Y. Stonybrook, N.Y.
1984-1991
Attending Anesthesiologist
Catholic Medical Center
St. John’s Hospital - Queens, N.Y.
1988-2001
Day-Op Center - Mineola, N.Y.
1988-2003
North Shore/Long Island Jewish Hospital
Syosset Division
2000-Present
1
Voluntary Attending Anesthesiologist
Nassau University Medical Center
East Meadow, NY
01/08-05/10
Voluntary Attending Anesthesiologist
Department of Palliative Care
North Shore/ Long Island Jewish Hospital
Manhasset Division
2008-Present
Assistant Attending
Department of Anesthesiology
North Shore/ Long Island Jewish Hospital
New Hyde Park, NY
09/08-Present
Director of Pain Management
05/09-Present
Day Op Center- Mineola, NY
I am in charge of credentialing all physicians who request interventional
pain management privileges at DayOp. This entails reviewing their
training (residency, fellowship, etc.), reviewing letters of recommendations,
and state and national data bases. I will certify the types of procedures
they are compatible of performing based on their training experience
and current hospital privileges.
St. Joseph Hospital
Bethpage, NY
11/11-Present
Wyckoff Heights Medical Center
Brooklyn, NY
01/12-Present
CERTIFICATES:
Diplomat American Board of Anesthesiology
October 1984
Board Certified American Academy of Pain Medicine
1995
Subspecialty Certification in Pain Management
1996
(by the American Board of Anesthesiology)
Certificate of Added Qualifications in Pain Management
2006
(by the American Board of Anesthesiology)
Certified Lab Director- Moderate Complexity Laboratory- New York State 2010
LICENSURE:
New York State # 149211
2
PROFESSIONAL ORGANIZATIONS:
New York State Pain Society
President 2011
American Academy of Pain Management
American Academy of Pain Medicine
American Medical Association
American Society of Interventional Pain Management Physicians
American Society of Anesthesiologists
International Anesthesia Research Society
New York State Society of Anesthesiologists
New York State Medical Society
Regional Anesthesia Society
Society of Office Based Anesthesia
Society of Pediatric Anesthesia
Society of Ambulatory Anesthesia
SEEK
Brief Statement Regarding Role in Residency Training Program:
I was a part of the pediatric anesthesia team at Long Island Jewish Hospital doing high
risk neonates and children. I was also involved on committees for:
1. Quality Assurance
2. Resident Training (Education)
3. Blood Transfusion
4. Anesthesia Equipment
The department library was under my supervision. I also took an active interest in the
department pain program and evaluated patients and supervised residents in the
performance of a multitude of nerve blocks.
In the last two years at LIJ, I began a program of pediatric intra-operative nerve blocks
for post operative pain relief and patient controlled analgesia/epidural narcotics for
obstetrics and general surgical patients. I have extensive experience in all types of
anesthesia, including anesthesia for ambulatory surgical, neuro-surgery and pediatric
cardiac surgery.
PRESENT TEACHING RESPONSIBILITIES:
Supervising and teaching palliative care fellows from North Shore Long Island Jewish
Hospital in all aspects of Pain Management.
PUBLICATIONS:
1. Neuman GG, Weingarten AE, Abramowitz RM, Kushing LG. Abramson AL Ladner:
3
The Anesthetic Management of the Patient with an Anterior Mediastinal Mass,
Anesthesiology 60: 144-47 1984.
2. Weingarten A, Korsh J, et al: Postpartum Uterine Atony After Intravenous
Dantrolene. Anest Analg 66:269-70, 1987.
3. Weingarten A: Anesthesia for the Patient with Sickle Cell Disease and other
Hemoglobinpathies. Progress in Anesthesiology I, zj-11, 1987.
PRESENTATIONS:
Anesthesia for the patient with sickle cell disease
NYSSA Post Graduate Assembly 1985-1987
Hemodilution in the Operating Room
NYSSA Post Graduate Assembly 1988-1989
Moderator: Opioid Prescribing The Good, Bad and Ugly
New York State Pain Society- Annual Meeting April 2012
Moderator: Opioid Prescribing
New York State Pain Society- Annual Meeting April 2013
New Develpoment in Pain Management
US Pain Foundation Patient Awareness Day April 21, 2013
Faculty Participant :Interpreting and Responding to Unexpected
Urine Drug Testing (UDT) Results
Millennium Laboratories-Webinar Conference August 16, 2013
Presentation at the Annual Conference of the New York State Pain Society
Moderator: Safe Use of Methadone
April 2014
Westchester, New York
AFFILIATIONS:
Member- Speakers Bureau
1. Cephalon
2. Meda Pharmaceuticals
3. Forest Laboratories
4. Pfizer
5. King Pharmaceuticals
6. Victory Pharma
7. Johnson & Johnson
8. Primus Pharmaceuticals
4
9. Eli Lilly
10. Millennium Laboratories
11. Reckitt Benckiser
12. Shionogi INC.
13. Functional Evaluations.com
14. Akrimax Pharmaceuticals
15. Insys Therapeutics, Inc. Advisory Board
16. Archimedes Pharma
17. Summit
18. River Crossing Pharmacy
MEDICAL LEGAL CONSULTING
1. Consulted for the United States Drug Enforcement Administration regarding the
parameters for safe opioid prescribing – December 2013
2. Workman’s Compensation, No Fault, Personal Injury, and Medical Malpractice Independent Medical Examinations and testimony.
PAIN MANAGEMENT:
Board Certified American Academy of Pain Medicine – 1995
Subspecialty Certificate American Board of Anesthesiology – 1996 (Recertified 2006)
I have practiced pain management since 1984. In 1991, I opened a private office in
New Hyde Park, N.Y. I treat approximately 2,000 patients per year (approximately
7,000 patient visits) and perform all interventional and non-interventional aspects of pain
management.
A significant amount of time is spent in diagnosing and treating patients with Complex
Regional Pain Syndrome (CRPS) also known as Reflex Sympathetic Dystrophy (RSD).
I was in charge of a program in the 1990s called SIMPL which involved teaching
patients how to administer subcutaneous lidocaine through a pump to prevent and treat
their chronic symptoms of CRPS. We continued to do weekly IV lidocaine infusions in
our office as well as sympathetic blocks, radiofrequency ablation and medication
management for treatment of CRPS. I am working on instituting a protocol to begin
Ketamine infusions for patients with CRPS who meet the criteria for this therapy. We
continue to keep up with the most recent literature and treatment protocols for this
devastating illness.
Alexander Weingarten, M.D.
86-90 Palermo Street
Holliswood, N.Y. 11423
[email protected]
(516)496-4964 ex. 47
(516)496-4950 fax
5
NYS Lic. # 149211
Comp. # CAN 149211 5
DEA # AW 2418932
UPIN # B10922
6

Nursing Home Neglect 2015 - The Suffolk County Bar Association

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