... and Justice for All

Patient Abuse At Richmond Nursing Home Documented On Videotape

A family has documented by videotape the abuse of a family member at a Richmond nursing home, Madison Manor, the Lexington Herald-Leader reports, "Videotape At Nursing Home Documents Abuse."  Family members of an Irvine woman, Armeda Thomas, noticed bruises on her and could not get a straight answer from the nursing home staff.  So to find out the truth they installed a videocamera in her room.  The camera filmed numerous instances of physical abuse, failure to properly feed, and numerous other instances of neglect.  The nursing home has been cited by the Kentucky Cabinet for Health and Family Services.

Madison Manor is owned by Extendicare, a Wisconsin-based company.  Extendicare has been and is involved in numerous patient abuse and neglect lawsuits.  A lawsuit in Washington state alleges that an Extendicare nursing home there violated a consumer protection law by advertising high-quality, skilled nursing care and failing to deliver and another law that that bars nursing homes from making residents sign a form waiving liability for injury or property loss, according to seattlepi.com.  Also reported is that federal records show that nearly all of Extendicare's Washington homes have higher-than-average scores for health deficiencies from state inspectors. A class action lawsuit filed in Wisconsin claims that Extendicare fraudulently advertised its services and intentionally admitted more acutely ill residents without hiring enough staff to properly care for them, according to the Milwaukee Journal-Sentinel, "Class-action suit filed against Extendicare nursing home."  The Chicago Nursing Home Lawyer Blogreports a similar class action lawsuit was filed against Extendicare in Minnesota. 

Kentucky families with concerns about a nursing home, or the care a family member is receiving in a nursing home or about the possible abuse or neglect of a family member or loved one in a nursing home can find help by contacting or visiting the web site of Kentuckians for Nursing Home Reform or Nursing Home Ombudsman Agency of the Bluegrass. 

Robert L. Abell
www.RobertAbellLaw.com

Elderly Diabetics Face Greater Risk From Drug

Elderly diabetics taking the drug rosiglitazone, which is sold under the brand name Avandia, face a greater risk of developing congestive heart failure a Harvard Medical School report has found, according to the New York Times, "Diabetes Drug Linked To Higher Rate Of Death."  The study tracked 28,361 Medicare beneficiaries for up to five years and found that death rates were 15% higher and incidents of congestive heart failure 13% higher for those treated with rosiglitazone compared with those taking pioglitazone. 

Robert L. Abell

www.RobertAbellLaw.com  

Enforce Discrimination and Consumer Protection Laws Toward Solving the Mortgage Mess

Predatory lending in violation of federal discrimination and consumer protection laws is a large component of the mortgage mess that has brought our national economy to a standstill.  Enforcement of of federal discrimination and consumer protection laws is one means to force the predatory loan sharks to pay their share of remedying the mess suggests law professor Ray Brescia in an interesting article, Eat the Loan Sharks?, on Slate.  He reports that Federal Reserve data from 2006 shows that, among borrowers of similar income, 30 % of African-Americans received subprime loans, 26 % of Latinos did compared with only 18% of white borrowers, facts that suggest discriminatory lending practices in violation of federal law.  Professor Brescia explains further:

This discrimination is at the core of a number of lawsuits advocates have filed across the country over the last year. Several of the cases focus on a particularly devious practice: Without borrower knowledge, many mortgage brokers received a commission from the lender for persuading a borrower to accept a higher loan interest rate than what the bank was otherwise willing to offer. The lawsuits claim that such commissions were paid more often in loans to African-Americans and Latinos than in loans to whites, revealing, again, that lenders often charged borrowers of color more than their white counterparts. As these suits progress, and the groups suing gain access to lenders' and brokers' records—e-mails, internal memoranda, training materials, and other documents—we are likely to learn more about the practices of the lenders who are the defendants and about the industry in general.

Professor Brescia also notes that consumer protection laws in many states also prohibit the common practice of mortgage brokers increasing their own commissions by steering borrowers into more expensive mortgages.  

Robert L. Abell

www.RobertAbellLaw.com

Tainted Toys To Remain For Sale, Consumer Product Safety Commission Says

Children's toys, including teethers and pacifiers, tainted by the presence of the controversial chemical phthalate will remain for sale for now and even after a ban takes effect on February 10, 2009, provided they were manufactured before that date, according to a decision by the Consumer Product Safety Commission, the Washington Post reports, "Some Toys With Banned Plastics Will Stay On Market." 

Phthalates are a chemical used in soft plastics and are linked to reproductive problems.  Their use was banned by a law passed in August.  However, the Commission's ruling will allow products made before that date which use the banned substance to be sold, even after February 10, 2009. 

The Commission proposes a remedy that is unworkable; it says that concerned parents can call a product's manufacturer and find out when the item was made.  This is a proposal untethered from reality.  One can first question the reliability of any information a parent would receive.  Do you call before the item is purchased?  Do you identify the item on the store shelf, call and return later hoping to find the same item on the shelf?  Ignoring these realities the Commission caved into industry's complaints about complying with this law protecting families and their children.

Robert L. Abell
www.RobertAbellLaw.com

Justice For Sale? Supreme Court To Decide West Virginia Judicial Campaign Contribution Case

The United States Supreme Court indicated Friday that it will decide a case that comes close to the very fundamental question of whether justice and a court can be bought.  The case, Caperton v. A.T. Massey Coal Company, Inc., according to the petition for writ of certiorari filed the losing party in the West Virginia Supreme Court, presents the following question:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court -- more than 60% of the total amount spent to support Justice Benjamin's campaign -- while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict.  The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. (The petition for certiorari can be read here). 

The petition leans primarily on an "appearance of bias" argument, stopping short of accusing or alleging actual bias.  It recites prior pronouncements by the Court that "to perform its high function in the best way justice must satisfy the appearance of justice."  Basic components of fairness are implicated:  (1) a "fair trial in a fair tribunal is a basic requirement of due process" and, (2) a "neutral and detached judge" is an essential component of this due process requirement." 

It does not appear that the Court will be asked to prohibit categorically campaign contributions by individuals in judicial elections, while noting that between 1999 and 2006 candidates seeking seats on state supreme courts raised more than $157 million.  The Court is urged to "clarify the circumstances in which due process requires the recusal of a judge who benefited from the campaign expenditures of a party or an attorney."  And so the Court is asked to draw the line at which point it may appear that justice has been bought. 

Robert L. Abell
www.RobertAbellLaw.com

American Association for Justice Reports On Insurance Companies' "Tricks of the Trade"

The American Association for Justice (AAJ) has continued its examination of the insurance industry.  In July, AAJ released a report The Ten Worst Insurance Companies in America: How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most.  Now, AAJ reports on the insurance industry's stonewalling, subterfuge and other unethical and bad faith practices: Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse. 

The favorite tricks include the following: denying claims, delaying until death, confusing consumers, discriminating by credit score, abandoning the sick and cancelling for a call.

Robert L. Abell
www.RobertAbellLaw.com

HIPAA Violated By Defense Counsel's Interviews of Plaintiff's Prior Treating Physicians

HIPAA prohibits disclosure of protected medical information, except under certain circumstances.  One circumstance is in the course of a judicial proceeding in response to a court order, subpoena, discovery request "or other lawful process."  The Georgia Supreme Court has ruled in Moreland v. Austin, No. A08G0498 (November 3, 2008), that informal interviews by a defendant's attorneys of the plaintiff's prior treating physicians violated HIPAA.  HIPAA requires, the court explained, defendant's attorney to first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact. 

Robert L. Abell
www.RobertAbellLaw.com

Mislabeled Insulin Syringes Recalled

Mislabeled insulin syringes manufactured by Covidien. Ltd. and sold by Wal-Mart and Sam's Club stores have been recalled, according to a report in the New York Times, "Insulin Syringes Are Recalled."  The recall was announced by the Food and Drug Administration.  The mislabeling could cause patients to receive 2.5 times the normal dose; approximately 471,000 syringes, which go by the brand name ReliOn, are said to affected.

Robert L. Abell
www.RobertAbellLaw.com