THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, March 5, 1996 TAG: 9603050177
SECTION: BUSINESS PAGE: D1 EDITION: FINAL
SOURCE: By DEBRA GORDON, STAFF WRITER
LENGTH: Long : 111 lines
In an aging, litigious nation, one trend has spawned another.
Trend 1: Americans are increasingly turning to nursing homes to house our elderly and infirm.
Trend 2: Now lawyers and patients' families are building a growing counter-business. Suing those nursing homes.
One plaintiff is Linda Zakaria. Zakaria says she visited her mother, who suffers from severe dementia, at a Chesapeake nursing home two years ago and found her with black-and-blue bruises on the left shoulder and around her left eye.
And that wasn't the first time she'd worried about her mother's care, she says. Several months earlier, she says, the older woman had fallen, fracturing her nose. And another time, Zakaria says, she found her mother lying in bed in dried feces.
In January, Zakaria, who has moved her mother to a home in Portsmouth, filed a $1 million lawsuit against the first facility, Camelot Nursing Home, now known as Chesapeake Healthcare Center. In the suit, she alleges that neglect by the nursing home led to her mother's fall, her bruises and the dried feces.
Roanoke-based Medical Facilities of America, which owns Chesapeake Healthcare, would not comment on the case.
Zakaria's nursing-home lawsuit is typical of hundreds more across the country.
Attorneys for the industry note lawsuits are increasing in numbers, especially outside Virginia, and result in part because the elderly are susceptible to falls and other problems that can trigger lawsuits. Experts also cite the demographic trend.
``The percentage of elderly people is greater, so that naturally indicates a rise in lawsuits,'' says Ann H. Brittian, a law professor atWidener University in Wilmington, Del. Brittian specializes in elder law.
``But I think more importantly, the past attitude was always, `Well, they must have been old and sick or they wouldn't have been in nursing homes, so how do you prove that there was any consequence from wrongdoing? They were going to die anyway.' ''
That attitude is changing, she says, as Americans' image of what ``old'' means. No longer is 70 considered old; no longer is there the perception that the quality of life is less-important as one ages.
Judges and juries seem to reflect these changes in attitude. After inflation, the mean award in nursing-home negligence cases across the country rose more than 50 percent from 1987 to 1994 - to $525,853 in 1994 dollars.
In August, lawyer Carlton F. Bennett won a $275,000 award for a woman whose leg was amputated due to neglect by Oakwood Nursing & Rehabilitation in Virginia Beach. Bennett says people are more inclined than ever to seek litigious remedies to abuse and neglect in nursing homes.
The main reason, he says, is because they get frustrated when they try to go through official channels, such as the state Health Department, which licenses and inspects nursing homes.
Complaining to state officials, he says, ``is like throwing something down a hole.''
He has another lawsuit pending, this one against Waverly Healthcare Center. The suit alleges a resident died after she was given the wrong dose of morphine.
Another pending lawsuit, filed by Norfolk lawyer Larry Shelton, alleges that a 71-year-old resident at Norfolk Healthcare Center died from untreated gangrene.
Waverly and Norfolk Healthcare Centers are both owned by Medical Facilities of America, the same company that owns Chesapeake Healthcare. The company would not comment on any pending litigation.
Despite those lawsuits, lawyers here say there's yet to be a big rush to the courts in Hampton Roads. But that hasn't stopped one local law firm from trying to drum up such business through advertising.
``If you or a loved one have been injured or mistreated at a nursing home, you should know your rights,'' said the radio ads for Norfolk law firm Kalfus & Nachman, which ran last fall.
The firm began airing the ads in response to recent reports in Consumer Reports and on ABC's ``20/20'' newsmagazine about abuse and neglect in nursing homes around the country, said firm principal Stuart Nachman.
The ads, however, didn't garner much response and were pulled after three months.
Still, legal trade journals, such as ``Trial'' and the ``Illinois Bar Journal,'' have been touting nursing-home litigation.
``This is a really hot area of law,'' Liz Capezuti, an assistant professor at the University of Pennsylvania School of Nursing and an expert witness in elder abuse and neglect cases, said in a December 1995 ``Trial'' article.
Richmond lawyer Rodney Adams, whose firm represents one of the state's largest nursing-home chains, called such lawsuits ``a growth industry for the plaintiff.''
Adams said he hasn't seen a tremendous boom in Virginia of lawsuits against nursing homes.
``Certainly, nationwide the trend is upward,'' he said. ``We all start out feeling guilty about putting our parents in a nursing home and we have very high expectations of what kind of care they should have when we put them there.''
But nursing home residents, because of their age and illnesses, are going to have trouble with falls, skin breakdowns, diet and nutrition, he says, the kinds of problems that typically generate a lawsuit.
There is no universal way for a nursing home to avoid a lawsuit, Adams says. He recommends that administrators document the care as best they can, and explain to families what's happening as patients' care progresses.
``The best prevention is good communication,'' he says.
Still, there will be willing plaintiffs. Linda Zakaria hopes an award in her case would give her enough funds to care for her mother at home.
The lawsuit, she says, is ``not about me and Camelot, but about my mother and Camelot and the injuries she got while in their care.'' ILLUSTRATION: After inflation, the mean award in nursing-home negligence cases
across the country rose more than 50 percent from 1987 to 1994.
KEYWORDS: LAWSUITS NURSING HOMES ELDERLY by CNB