Bedsores happen more often than necessary and they are not the fault of the patient. The patient is usually a victim with a right to sue. Below are some answers to frequent questions we have received:
If the patient was at a hospital first and then a nursing home which do we sue?
It always depends on individual and medical circumstances but the possibility exists that both are liable. Often an injury begins in a hospital, may not be reported and/or is overlooked or neglected on intake at the second facility where it may get worse or lead to infection and other medical issues.
Do I have a malpractice case?
A case may be medical malpractice on behalf of a facility or doctor. There may be hospital negligence and nursing home liability as well. In unfortunate and sad circumstances it may be a wrongful death lawsuit, where a family member or loved one may have the right to recover losses. Our team of experts will help determine the best options for for your bedsore or pressure sore, decubitis ulcer lawsuit.
What if the patient is too ill to appear in court?
This is not an issue and often the case with bedsore victims. For bedsore and pressure sore lawsuits there’s a legal team that includes experienced bedsore litigators, and medical professionals that can testify based on patient medical records and treatment or lack of and improper treatment. As well as other expert witnesses that look into hospital procedures, policy and practices and determine if any federal violations were evident or standards of procedure were not met. Medical records and pictures of wounds are used.
How much does it cost to sue?
There is no fee to you unless we win. When we accept a case we put in the resources and hours of our bedsores legal team because we are confident of a successful outcome based on the facts of the case. If we take on your case it’s because we see huge upside financial potential for the victim or family of the victim. We work on contingency—no upfront fee or time billed to you. When you win we get an agreed upon portion of the award.
Will beginning a lawsuit get better care for the victim?
Once a hospital or nursing home knows a bedsore lawsuit is possible, often the care and treatment of the patient improves. This is because now they know they are under scrutiny and may be even further liable legally if not giving the proper care and medical attention after the sores have been documented by family and bedsore lawyers. Additionally, our law firm will let you know the standards of care that is necessary for you or your loved one. We can even help guide you on the best way to discuss issues with the doctor or staff and get the desired results.
I want to sue – does it take long? Does my dad have to appear in court?
Timing of a case varies. With expertise and experience and a hands-on approach we move swiftly. The size of our firm allows us to focus on cases so they don’t get lost in the shuffle. Many times cases are settled before even going to court. Of course, the plaintiff has a say in this decision and we do what is best for our client.
How do I know if I have a good bedsore lawsuit? The nurse said the sores were caused by my father and existed.
Don’t put much credence in the opinion of anyone that isn’t a legal expert. Even a medical professional or doctor doesn’t have the legal knowledge and they or facility administrator may even try to persuade you against a bedsore or pressure sore lawsuit. Such tactics aren’t new. Don’t be a victim twice. Consult with legal professionals when medical ones let you down.
For more information or to see if you have a valid lawsuit, click here.
To download a Free Bedsore Fact Sheet, click here.
The Law Offices of Brian A. Raphan, P.C.
By Matthew S. Raphan, Esq. Attorney at The Law Offices of Brian A. Raphan, PC
Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.
Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.
Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.
Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.
While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:
- your spouse;
- your child who is blind or permanently disabled;
- a trust for the sole benefit of anyone under age 65 who is permanently disabled.
In addition, you may transfer your home to the following individuals (as well as to those listed above):
- your child who is under age 21;
- your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
- your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.
Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.
For more information on Medicaid’s transfer rules, click here.
If you have a question you can send us a message here.
There is a little-known program in New York City that’s helping to keep some senior citizens’ pets where they belong — in their loving homes, and out of animal shelters. It’s the JASA PETS Project, and it’s making a difference for many NYC seniors and their pets.
Following a heart bypass operation, Ms. B. — a former teacher who lives alone with Lady, her two-year-old Dachshund — was feeling isolated, depressed, and useless. Already involved with the JASA Pets and Elder Team Support (PETS) Project, a group of international students was recruited to help Ms. B. care for her dog. In return, she has begun to work with them to improve their English conversational skills. The connection with the students has restored Ms. B. into a vibrant, involved educator interacting with a group of students who, in turn, are helping her dog.
Ms. H. suffers with multiple sclerosis. Isolated and bedridden, she relied upon her two cats for companionship. Sadly, last year one of her beloved cats died and shortly thereafter, her other cat, Foxy, wandered outside her apartment building and disappeared. Distraught over the loss, Ms. H. contacted JASA PETS. The Project Coordinator immediately posted flyers throughout the neighborhood and dispatched a team of volunteers to search for the missing cat. After two days, Foxy found her own way home, and was discovered scratching at her door. Ms. H. was thrilled that her companion was safely home, but also profoundly appreciative for the support she received from the PETS Project team throughout the ordeal.
These are just two of the many heart-warming successes that have been created by JASA PETS. JASA, the Jewish Association for Services for the Aged, is a social service agency dedicated to enhancing the lives of elderly New Yorkers. It is committed to creating innovative programs to meet the evolving and expanding needs of the aging. JASA created the PETS Project in 1997 to address the needs of elderly pet owners whose capacity to care for their pets has been compromised by frailty, illness, and/or inadequate income.
In recognition of the critical role that pets play in the lives of older people — particularly those who are homebound — the program is designed to keep seniors and their pet companions together. Studies show senior citizens with pets suffer less from depression, require fewer doctors’ visits, and have lower blood pressure than those without animal companions.
Often, increasing age and declining health create obstacles to providing proper care for pets. Seniors afflicted with arthritis lose the ability to walk their dogs or groom long-haired cats; fixed incomes often cannot be stretched to cover routine veterinary bills; and pet owners with complex health problems may refuse hospitalization because they have no one to care for their animals in their absence.
How JASA PETS Can Help
The JASA PETS Project matches volunteers with elderly pet owners to provide assistance tailored to the needs of each client. By matching a volunteer with an elderly client, the program provides for the care and well-being of both the senior and the pet.
The client-volunteer teams are overseen by a full-time coordinator, a social worker with prior work experience in pet care, who conducts an initial in-home assessment and is fully involved in the service plan, including reviews of pet care routines. Volunteers help with dog walking, litter box cleaning, emergency feeding, shopping for pet food and supplies, transportation to veterinarians and groomers, training, and pet sitting.
In some instances, a skilled volunteer is able to assist with administering medication to sick pets. In addition, the program provides foster care during client hospitalization periods and participates in pet placement after the death of the human companion. A small relief fund has been established to assist clients who cannot afford to pay for needed pet services and/or their own expenses. The availability of this fund helps relieve financially strapped seniors from the need to make financial choices that compromise their health or the health of their pets.
The program also provides seniors with information about low-cost pet care and will help them make arrangements for their pets in their will. And it can assist in finding a good adopter for a pet if a client dies or can no longer keep a pet.
For some clients, the program helps them through one of the most difficult situations imaginable — the loss of a pet. Such was the recent case of Ms. M., an isolated, homebound client who agonized for several weeks over the difficult decision to put her terminally ill companion cat, Samantha, to sleep. The JASA PETS team visited Ms. M. regularly, coordinated efforts with two veterinarians, assisted in the planning for burial services, and called her daily to provide support. When Samantha died naturally on May 23, the PETS team was there within 30 minutes to console Ms. M. An informal but meaningful memorial service was held at her apartment, and the JASA team took Samantha’s body to the burial provider that had been designated by Ms. M. The team continued to provide bereavement support to help their client through the mourning period.
JASA PETS is making a difference in the lives of many seniors and their pets. The program has been praised by other organizations that serve the senior population. Mary Dodd, Director of the Homebound Unit of the Carter Burden Center for the Aging, says, “On behalf of the Burden Center, I would like to extend my gratitude to the Project. The Project provides unique and vital services to the most vulnerable and forgotten segment of our society. It is imperative that the program be celebrated and receive the continuing support needed to sustain its existence.”
Wendy Golub, Director of Programs at The Caring Community, says, “The PETS Project provides a unique service to the seniors in our community. We at The Caring Community have enjoyed and profited from working with them as they are not only responsible and reliable, but collegial and a pleasure to work with.”
The program is available to senior citizens — regardless of race or religious affiliation — who are sixty years of age or older and are unable to fully provide for the care of their pet companions. Currently, JASA offers this program to residents of Manhattan only. However, it is the aim of PETS eventually to expand the program to include the five boroughs.
To contact JASA PETS for services, simply call (212) 273-5217 to schedule a meeting at the client’s home. Once the client has provided information about the pet and any pet care concerns, the client will be matched with a volunteer to assist them in addressing those concerns.
If you are interested in volunteering for the JASA PETS Project or making a contribution, please contact Paul Domin, Project Coordinator, at email@example.com or call (212) 273-5217.
The JASA PETS Project is funded by the Tuttle, Leibovitz, and Ahimsa Foundations.
Associated Press in Las Vegas
Lawyer for daughters and other heirs alleges business manager misappropriated millions, had been untruthful and was unqualified to be executor.
A lawyer representing a group of BB King’s heirs said on Saturday they would challenge the blues legend’s will and the actions of his longtime business manager-turned-executor of his affairs.
Attorney Larissa Drohobyczer issued a statement early on Saturday, just hours before a private memorial service in Las Vegas.
King was 89 when he died at his home in Las Vegas earlier this month. Fans lined up for a public viewing of his body on Friday. His body will be flown back to Memphis, Tennessee, on Wednesday. A tribute is scheduled that day at WC Handy Park on Beale Street.
A public viewing is scheduled for Friday at the museum that bears his name in Indianola, with a funeral on Saturday at nearby Bell Grove Missionary Baptist church. He will be buried during a private service on the museum grounds.
Drohobyczer’s statement alleged that LaVerne Toney had misappropriated millions of dollars, had been untruthful, had “undue influence” and was unqualified to serve as executor of the estate.
Drohobyczer says she met with five adult King daughters – Patty King, Michelle King, Karen Williams, Barbara King Winfree and Claudette King Robinson – and several other heirs before issuing the statement.
Toney told the Associated Press that she was not going to immediately respond. She said she hoped Saturday’s memorial would be calm, peaceful and respectful.
Hundreds of fans, meanwhile, were expected on Sunday at the 35th annual BB King Homecoming Festival, a free gathering that the legendary bluesman started in his hometown, Indianola.
Performers were scheduled to include a country blues band called the North Mississippi Allstars; a Bentonia, Mississippi, blues guitarist and singer, Jimmy “Duck” Holmes; and a children’s choir based at the BB King Museum and Delta Interpretive Center in Indianola.
King played at the free festival dozens of times. He drew a larger than usual crowd in 2014, which was already billed as the final homecoming performance for the King of the Blues.
While King was alive, organisers were planning this year’s event as a tribute to him. Since his death on 14 May, they have called it a memorial celebration. The festival is held on the grounds of the museum that opened in 2008.
“We certainly will miss his infectious smile and warmth this year, but we have no doubt he would want us to carry on with this tradition,” the museum’s executive director, Dion Brown, said in a statement.
For 5 Reasons to Review Your Will click here.
Learn the difference between a Will & a Trust click here.
To make sure you have an iron clad will, you can reach me here.
The Law Offices of Brian A. Raphan, P.C.
7 Penn Plaza, New York, NY 10001
Article by Brian A. Raphan. Published 3/17/15 in ‘THE DOCTOR WEIGHS IN’
When a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.
Any time a patient is confined to a bed or chair for a period of time and not provided proper and adequate care, the risk of pressure ulcers increases.
The National Pressure Ulcer Advisory Panel (NPUAP) defines a pressure ulcer as a “localized injury to the skin and/or underlying tissue, usually over a bony prominence, as a result of pressure, or pressure in combination with shear.” Illustrations of the stages of pressure ulcers are shown below:
Sadly, pressure ulcers are the underlying cause of mortality and morbidity for several thousand patients across the country each year. Researchers analyzing the national Medicare Patient Safety Monitoring System (MPSMS) database found that the nationwide incidence rate for hospital-acquired pressure ulcers was 4.5 percent. The five states with the highest incidence rates are New York (5.2%), Missouri (5.3%), New Jersey (5.3%), Massachusetts (5.5%) and Pennsylvania (5.9%).
The federal government, in its first year of a federal initiative to improve patient safety, recently imposed penalties aimed at reducing preventable harm. Five states saw a significant percentage of hospitals being penalized: New York, where 26% of hospitals were penalized by having their Medicare reimbursements cut by 1%; Missouri, 25%; New Jersey, 37%; Massachusetts, 22%; and Pennsylvania, 25%.
In New York State, penalized hospitals included some well-known healthcare facilities, such as Beth Israel Medical Center and New York University Langone Medical Center.
All sedentary patients are vulnerable, but the elderly and patients whose skin condition has been compromised are especially at risk. Pressure ulcers are most common on bony prominences with little protective fat or muscle (such as heels, hips, shoulders, and tail bones), and they develop when patients stay in one position for too long without shifting their weight. The constant pressure against the skin reduces blood flow to contact areas. The skin begins to break down and the tissue dies, possibly in a matter of hours. Friction and shear caused by sliding down in the bed, or being moved improperly from a stretcher to a bed can exacerbate the problem. Pressure ulcers slow a patient’s recovery, can lead to other issues and infection and prolong hospital stays. The total annual cost for treating pressure ulcers in the U.S. is estimated at $11 billion. However, pressure ulcers (also known as bedsores and decubitis ulcers) are preventable.
To prevent pressure ulcers and damage to the skin, recent NPUAP recommendations can be summarized in seven steps:
Because these seven steps are so easy to follow, when a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.
Upon admission to a hospital for another health concern the issues can go unnoticed, allowing further damage to take place in a relatively short time. This also creates liability on the part of the hospital.
In many lawsuits that we handle, the hospital is dealt a bad hand by receiving a patient from a nursing home where a skin breakdown or pressure ulcer has already begun. At times, due to dementia for example, a patient may not be able to express or know how to communicate pain upon entering the hospital. However, this is no excuse for not identifying a high-risk patient and making regular daily assessments.
To be clear, pressure ulcers are not the fault of the patient. The patient is a victim. Medical negligence by a hospital, doctor, nurse, aide or medical technician is unacceptable and may be the cause of pain and suffering, or even result in death. It is simply not acceptable for patients to develop bedsores or pressure ulcers while they are in the care of medical professionals and receiving medical care and treatment at a facility.
There is no doubt that hospitals and staff, from talented skilled doctors, nurses and medical professionals to support staff and administration, do their best to help and treat patients. However, protocols exist in every facility, and perhaps, it is just a matter of every individual being a bit more aware, and caring just a little more, when dealing with the elderly and at-risk patients.
By Brian A. Raphan (Principal Attorney, Law Offices of Brian A. Raphan, P.C.
As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.
The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts. In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.” Following is the authors’ discussion of the problematic areas:
• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].
• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.
• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.
In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.
Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.
• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.
While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”
Brian A. Raphan, Esq.
The need to protect your assets is always at hand. Planning for long-term care with an elder law attorney can help protect your assets for the in home spouse and heirs. Medicaid Planning or Life Care Planning helps to ensure that you or your loved one get the best possible long-term care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The following article brings this issue to light.
To Collect Debts, Nursing Homes Are Seizing Control Over Patients.
Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.
Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.
Reversing a trial court, a Louisiana appeals court determines that a nursing home resident improperly transferred close to $50,000 to his caregiver nephew and the nephew’s wife because the payments were not made pursuant to a valid personal care agreement. David v. State of Louisiana Department of Health and Hospitals (La. Ct. App., 1st, No. 2014 CA 0791, Dec. 23, 2014).
Widley David entered a Louisiana nursing home in 2008. Between 2008 and 2010, Mr. David wrote six checks to his nephew and his nephew’s wife totaling $49,195. According to Mr. David, the checks were intended to repay his closest living relatives for the daily care that they provided him in the nursing home. When Mr. David applied for Medicaid in December 2010, the Louisiana Department of Health and Hospitals (DHH) assessed a nearly 15-month penalty period due to the transfers.
Mr. David did not appeal the initial imposition of a penalty period, but in July 2011 he requested a change in status from private pay to full Medicaid pay. DHH denied this request, stating that pursuant to the initial denial, Mr. David was ineligible for Medicaid until January 2012. Mr. David appealed the denial of his change in status, arguing that the payments to his relatives were reimbursement for care provided and not to qualify for Medicaid. DHH claimed that the payments would be valid only if made pursuant to a written personal care agreement, which Mr. David had never executed. After a trial court found in favor of Mr. David, the state appealed.
The Louisiana First Circuit Court of Appeal reverses the trial court, finding that the lack of a personal care agreement made the transfers to the relatives improper. The court states that a “payback arrangement or personal care agreement was necessary to validate this alleged arrangement; however, Mr. David did not offer any type of tangible or documentary evidence of an agreement, contract, or Personal Care Agreement to substantiate and validate his argument. The record is void of any evidence that complied with Medicaid eligibility requirements to validate the resource transfers.”
To read the full text of this decision, click here.