Why is this lawsuit so controversial? 

The lawsuit itself is not controversial, but counsel for the defendants is attempting to use Public Readiness and Emergency Preparedness Act (PREP Act) to circumvent liability rules. The PREP Act was passed by then-President George W. Bush who insulated drug makers from liability regarding their H1N1 vaccines. Defendant’s counsel is hoping to use the legislation to protect this particular nursing home from these particular allegations. It is unclear that the law can be used in that way, but if it can, it could prevent all lawsuits against nursing homes stemming from the pandemic. Thus far, the rulings have gone against the nursing home industry, but there may be some political maneuvering to attempt to use the law this way. Meanwhile, the nursing home is happy to stall the process of the case reaching a jury for as long as humanly possible.

The likely outcome of this lawsuit

 The outcome of this lawsuit depends entirely on whether or not you believe the PREP Act can be applied to nursing homes. To qualify, the Secretary of the Department of Health and Human Services would be required to issue a PREP Act declaration that forced the provisions of the act to be activated. Such a declaration would provide immunity from liability claims during the declaration.

The original intent of the law was to prevent those who supplied pandemic-related countermeasures (such as vaccines, drugs, and other necessities) from liability. The idea was to ensure that these companies weren’t working under the threat of lawsuit when attempting to help the American public.

If you believe that the PREP Act applies to nursing homes (because they are “pandemic countermeasures”) then you believe that the lawsuits should be quashed. If you believe, as would make sense, that nursing homes are facilities for sick people to get better, then you would find in favor of the plaintiffs.

However, there could be a gray area. In some places, nursing homes were used as pandemic countermeasures to house those who required respirators or other serious interventions. However, it’s not clear that this was the case with this particular nursing home.

Talk to a Miami Personal Injury Attorney Today 

Most nursing home lawsuits resulting from COVID are blocked by legislation, but you can still call the Miami personal injury attorneys at the office of Alan Goldfarb, P.A. today for a free case evaluation.

Resource:

fox4kc.com/tracking-coronavirus/wrongful-death-lawsuit-against-prairie-village-nursing-home-heard-in-washington-dc/

The attorney accuses Coleman of verbally and physically abusing the victim prior to the rape. The woman has since passed away. The lawsuit has been recently filed and is one of two against the nursing home fingering Coleman for inappropriate conduct.

The same Coleman who raped an elderly bed-ridden patient was also accused of sexually harassing at least four female nurses at the facility. Coleman is facing four counts of sexual abuse.

Did the Nursing Home Ignore Signs?

Part of the lawsuit against the nursing home is that they ignored clear signs that Coleman was a problem-employee. The alleged rape occurred six months prior to Coleman being fired amid sexual harassment claims. However, for the sexual harassment claims to have escalated to the point of a lawsuit, the nursing home probably did not follow the proper procedures for dealing with sexual harassment in the workplace.

Even more problematic, two of the women who reported Coleman were only 17 at the time the alleged sexual harassment occurred. One seventeen-year-old reported that Coleman prevented her from leaving a linen closet and forcibly embraced her, trying to kiss her.

Each of these incidents occurred prior to the rape of one of the nursing home’s residents and the attorney for the family notes that had the nursing home taken these allegations seriously and acted on that information, the rape could have been prevented. The attorney blames the nursing home for not only allowing him to continue to abuse those around him, but actually enabling him by giving him access to a vulnerable population.

Additionally, there were other signs that Coleman could not be trusted around patients. Someone left an anonymous note reporting that Coleman used duct tape on another resident’s mouth to keep them from shouting out.

Punitive Damages in Nursing Home Abuse Cases

In order to secure punitive damages in a nursing home abuse lawsuit, it is necessary to show that the negligence of the nursing home or staff was so egregious that it made some type of event that is actionable almost inevitable. This lawsuit is an excellent candidate for punitive damages. Here, you have administration turning a blind eye to multiple claims of sexual impropriety against a specific staff member. It also has reports that the staff member is abusing the patients. The nursing home fails to act, and one of their patients is raped. That’s as clear an argument for punitive damages as a case is likely to have.

Talk to a Miami Nursing Home Abuse Attorney Today

If your loved one is being abused or neglected by the staff that is tasked with overseeing their care, the Miami personal injury attorneys at the office of Alan Goldfarb, P.A. would take great delight in seeing these parties held accountable for their cruelty and incompetence. Talk to us today for a free consultation.

Resource:

wdrb.com/news/second-lawsuit-filed-against-oldham-county-nursing-home-alleging-abuse/article_638e2640-f049-11e9-9cdd-dfff0da0d475.html

https://www.goldfarbpa.com/psychiatric-hospitals-negligence-implicated-in-rape-of-inpatient/

Police were unable to determine who raped the woman. The Escambia County Sheriff’s Office released a statement saying that they had exhausted their leads. Nonetheless, there is now a child who themselves would provide evidence of DNA. It remains unclear to what extent police were able to demand evidence of individual workers who worked at the facility.

The only other place where others would have had access to the woman is the Escambia Westgate School which caters to adults who have severe intellectual and physical disabilities. The woman spent most of her time at the Pensacola Cluster health care facility. The family believes that she was in the care of the Pensacola Cluster at the time of the assault.

A Difficult Case to Prove

Even though there are a limited number of people who had access to the woman, the unfortunate fact that the police were not able to pin down the assailant leaves the family with a serious problem. If they can’t prove where the rape occurred, it will be very difficult to prove negligence in the nursing home negligence lawsuit.

In order to bring a case against either the health care facility or the school for adults with disabilities, they must prove that either party was negligent in allowing the rape to happen. For instance, if an employee committed the rape, then you have a case for negligent hiring. If some unknown third party committed the rape, then you have a negligent security case.

Without knowing who or how the assault happened, it becomes very difficult to name either party as negligent as they can simply point the finger at one another.

There May be a Case for Medical Malpractice, However

The family may still have a case against Pensacola Cluster, however. According to the complaint, the woman was found to have physical injuries consistent with a sexual assault. There was visible bruising to her hip and her inner thigh. Employees for the Escambia Westgate School repeatedly informed Pensacola about her injuries and expressed concern for the woman. Pensacola Cluster, however, never treated the woman.

It’s notable that, because the woman is immobile, she would not have been able to give herself the injuries. The family and Westgate employees have both noted changes to the woman’s behavior including crying and apparent nightmares. These would be consistent with emotional distress.

Talk to a Miami Personal Injury Attorney

The office of Alan Goldfarb P.A. in Miami fights for those who have been injured by another’s negligence. Give us a call or talk to us online in order to set up an appointment today.

Resource:

huffingtonpost.com/entry/woman-with-severe-developmental-disability-raped-while-in-the-care-of-florida-facility_us_5c41df54e4b0bfa693c2e707

Some believe it’s due to the corporatization of nursing care.

One such company, Consulate Health Care operates 210 nursing homes in over 21 states. Several of those are right here in Florida. These homes have been targeted in lawsuits by private citizens and the government and fined thousands of dollars for unsanitary or unsafe conditions and poor standards of care.

Recently, a Florida judge tossed a $347 verdict against the company brought about by whistleblower Angela Ruckh who named a litany of offenses that the large conglomerate committed across their nursing homes, including defrauding Medicare and Medicaid with inflated charges. The verdict was thrown out because the judge didn’t necessarily believe that news of the violations and fraud would prevent the government from contracting with Consulate.

As ludicrous as that sounds, he has a point.

Florida has a long and sordid history of not punishing doctors or organizations that have been found in violation of basic medical standards and instead insulating them from making their victims whole.

Meanwhile, a Sarasota nursing home operated by Consulate was fined $26,000 and put on the state’s “watchlist” after failing to notify a patient’s daughter that her mother’s condition had worsened in their care. Her mother’s condition was not considered terminal when she was admitted to the facility.

The Shell Game

Consulate operates these nursing homes as a conglomerate, but each individual nursing home is held in its own series LLC. A series LLC, colloquially referred to as a shell company, isolates the assets of one company from another. Despite the fact the Consulate is making billions each year from the operation of these nursing homes, each of the individual nursing homes does not appear to be bringing in a great deal of money. This is by design.

In addition, Consulate itself is owned and operated by a larger corporation called Formation Capital. The individual nursing homes pay “rent” and other fees to Consulate or Formation Capital, moving the assets out of the LLC and into another company where they cannot be sued by an injured patient.

For example, let’s say that I’m a landlord and I own three houses. If one house causes a serious injury to my tenant, that tenant can sue me in a personal injury lawsuit for as much as they please, but only if all of those properties are held in my name.

If I’m a smart landlord, I can create a series LLC for each individual asset. This protects both me and my other assets. An injured party can’t sue me personally because I don’t own the house. The house is property of the LLC. They can sue the LLC, but they can’t go after my other assets.

As of today, one out of every nine nursing homes operating in Florida is owned by Consulate.

Contact Us for More Information

If you or someone you love was injured by a negligent nursing home, contact the Miami attorneys at the office of Alan Goldfarb, P.A. We can get started on your case right away.

Resources:

mcknights.com/news/whistleblower-with-millions-at-stake-will-appeal-consulate-false-claims-overturned-verdict/article/764154/

heraldtribune.com/news/20180524/florida-fines-sarasota-nursing-home-26000

In a case in which it can be shown with incontrovertible videographic evidence that nursing home staff are abusing a patient, the lawyer’s job is very easy. But most of the time that doesn’t happen. Staff at the hospital who are treating patients abusively tend not to offer up that information to lawyers or even other staff. With patients who may be suffering from dementia or other cognitive problems caused by age, it’s difficult to identify cases of abuse let alone litigate them.

This has inspired many concerned family members to bug their parent’s room with hidden cameras. The results have been upsetting, if not altogether surprising.

Most Cases of Nursing Home Abuse are More Subtle

The cases that get the most amount of press are those in which staff physically assault patients. More often than not, however, nurses and hospital personnel simply fail a very basic standard of care. This can also lead to injuries and, in some cases, deaths as well.

In legal terms, this means that the nursing home is negligent in their duties toward their patients. When this results in injury or death, the nursing home can be held liable. These sorts of cases happen far more often than the ones that get airtime on local news stations.

This has led Florida legislators to consider outfitting nursing homes with cameras. Six states already allow video monitoring of nursing homes. One of those states, Maryland, was ground zero for the initiative. The measure that passed allowed residents the right to install video cameras in their rooms. Nursing homes were not allowed to refuse a patient admittance simply because they wanted to install a video camera in their room.

A Question of Privacy

One of the largest obstacles to so-called “Grannycam” legislation is the lingering question of patient privacy. For instance, what if one resident wants video surveillance, but they are paired with a roommate who does not? The Maryland Bill says that both patients must be in agreement over the video camera.

Health Officials opposed to the bill say that it endangers the trust between a caregiver and their patient and is an invitation to lawsuits. They also claim it would make staffing nursing homes more difficult. Advocates say that those who are performing their duties appropriately and not abusing residents would have nothing to fear.

In 2012 a Florida resolution to allow nursing home patients the option of installing a camera in their room died in a subcommittee. Since then, no attempts have been made to revive a similar bill.

Contact Us For Help Today

If your loved one was injured or killed in a nursing home, we can help. Don’t hesitate to reach out to the Miami attorneys at the office of Alan Goldfarb, P.A. for immediate assistance with your case.

Resources:

local10.com/news/local-10-investigates/hidden-cameras-show-apparent-abuse-inside-south-florida-nursing-homes

abcnews.go.com/GMA/story?id=127269&page=1

Federal Law Mandates Immediate Reporting of Nursing Home Abuse

Under 42 U.S.C. 1320b–25, a federally-funded nursing facility must report any incident of abuse to law enforcement within two hours of learning about the incident when there is evidence that a resident or staff member has been seriously harmed. The Inspector General’s report found no evidence that local law enforcement was properly notified in 28 percent of abuse cases.

And it is likely that this percentage is much higher because investigators could only rely on cases where a resident of a nursing home was treated at an emergency room. This means a resident who has been abused within the walls of the nursing home and treated at the nursing home is not included in this report, according to the Consumerist.

Failure to Exercise Authority

CMS has had the power, since 2011, to levy fines against nursing homes who have been found to abuse their residents. In fact, CMS can levy a penalty totaling hundreds of thousands of dollars for violating federal law and failing to report an abusive incident with a resident. However, CMS has yet to exercise this authority on any nursing home facility in the six years since receiving this power. CMS claims it still requires further directives to implement an enforcement protocol.

How a Miami Nursing Home Abuse Attorney Can Help You or a Loved One

If you or a family member is being abused or neglected at a nursing home facility in Miami, it is critical that you speak to an experienced attorney right away. A lawyer can report the nursing home abuse to local law enforcement and take the necessary steps to protect your legal rights. This is important because it is quite common for facilities to “lose” abuse reports.

In a nursing home abuse case, your attorney will send notice to the nursing home of your claim and give the management team at the nursing home an opportunity to respond. The nursing home may be open to settling. If not, having an experienced attorney on your side will help ensure a lawsuit is filed in a timely manner and the lawyer can handle all pre-trial matters to effectively build your claim.

Speak to a Miami Nursing Home Abuse Lawyer Right Away

The Miami lawyers at the office of Alan Goldfarb, P.A. take pride in being skilled trial lawyers who are not afraid to take a case to court and present the facts to a jury. Our law firm has access to a cadre of expert medical witnesses who can testify in court and the resources to fully investigate the nursing home.

Resources:

consumermediallc.files.wordpress.com/2017/08/nursinghomereport.pdf

consumerist.com/2017/08/28/more-than-1-in-4-nursing-home-abuse-cases-may-go-unreported-to-police/

The Rehabilitation Center at Hollywood Hills reportedly contacted the Emergency Operations Center to alert them to a loss of power which was then routed to Florida Power & Light as a serious request needing immediate action. Reports indicate that when emergency personnel arrived at the facility, they asked staff members whether there were any medical needs or emergencies. Officials at the nursing home failed to request assistance or alert authorities to any medical emergencies. Less than two days later, eight people are dead.

The nursing home claims they had a generator on standby, in addition to plenty of food and water. The nursing home also claims that it established mobile cooling units and fans to help lower the temperature at the facility. The obvious question then is, if they took all of these precautions, how did eight residents die due to heat exposure?

Governor Rick Scott released a statement describing the situation as “unfathomable,” according to ABC News. He also stressed that every long-term care facility in the state is obligated to take every action and precaution necessary to keep patients safe.

The Governor declared the Agency for Healthcare Administration and the Department of Children and Families has been tasked to collaborate with law enforcement on an investigation into this tragic incident and that if the best interests of the nursing home residents were ignored, they will be held accountable.

Nursing Facility Has Checkered Past and History of Problems

Suspicion that the nursing facility may have been lax in fulfilling their duty to put their patient’s best interests at the forefront is well-founded. The Rehabilitation Center at Hollywood Hills has a poor track record with annual state inspections. The Florida Agency for Healthcare Administration gave the nursing home a rating of “much below average,” according to the Miami Herald. In addition, the manager for the nursing home facility was hit with a $15.4 million fine by the Justice Department in the settlement of a civil fraud complaint against the company.

How a Nursing Home Can be Held Liable for Neglecting Their Patients

If there is evidence that a nursing home or long-term care facility acted negligently, they can be held civilly liable for any harms and losses proximately caused by that negligence. If a loved one dies while residing in a nursing home, a personal representative of the victim’s estate can file a wrongful death claim against the facility to pursue financial restitution.

Speak to a Miami Nursing Home Neglect and Abuse Attorney Right Away

It is reprehensible for a long-term care facility to neglect or intentionally harm a patient. That is why it is important to hold the facility accountable if wrongdoing is discovered. The law firm of Alan Goldfarb, P.A. is here to help.

Resources:

abcnews.go.com/US/dead-florida-nursing-home-irma-tore-state/story?id=49817477

miamiherald.com/opinion/editorials/article173219406.html