Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 12, Issue 10                               ADVERTISEMENT                                            OCTOBER 2011

In This Issue
Tender Loving Care Goes a Long Way in Defending Against Lawsuits
Nursing Homes Aim for Perfect Care; Families Often Aim for Punishment and to Save Other Residents from a Similar Fate

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David Barmak, Esq. 


Allison Whitehead, Esq. 


Brandon Goldberg, Esq.


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Tender Loving Care Goes A Long Way In Defending Against Lawsuits

Our firm defended a nursing home against an intelligent and loving daughter of a former resident.  Her aged mother had lived for years in a nursing home other than that of our client. Her mom suffered multiple abuses in the other nursing home, including decubitus ulcers and dehydration. Her mom fell, fractured her hip, and was sent to a local hospital emergency room. The hospital ER misdiagnosed the hip fracture by not recognizing it. Her Mom went back to the other nursing home and fell again. This time the hospital ER properly diagnosed the fracture and discharged her to our client's nursing home. Her Mom stayed in our client's nursing home for 1 month.  She developed a urinary track infection (UTI) and was transferred to the same hospital that had misdiagnosed her fracture. She died there from her original injuries. Both nursing homes, the hospital and 10 physicians were sued.


After a year and a half of litigation, we were finally able to depose the anguished daughter. We were in a lawyer's conference room with at least 10 lawyers. The daughter turned out to be highly educated and had her own professional photography studio. It was obvious to us that she was devoted to her mother and her mother's memories.  She was also very angry about her mother's absence of care. Everyone in the room, except for us, were surprised when her angry attitude changed after we asked her about her mom's admission to our client's nursing home. The daughter smiled and then began to cry.  She told us that she had helped her mom move into a lovely room in our client's nursing home. She remembered helping her Mom to hang beloved pictures on the wall.  She described how thoughtful and caring everyone in our client's nursing home was - from admissions to social work to nursing to management. She said that her mom felt completely at home and was the happiest she had seen her in years.  We asked her if she or her mom had any complaints about the care she received at my client's nursing home. She said the care was perfect.   We then asked the toughest question of all because we did not want to be critical of her in any way. We asked her why she kept her mom in the first nursing home for years despite the suffering she claimed her mom experienced.  She was gushing tears when she said "I thought my mom had to stay in whatever nursing home the hospital sent her to.  I did not know that I could transfer her from that awful nursing home."  We then asked why she was suing our client if the care was perfect and her mom had been so happy. She said her lawyer had told her to sue everyone who provided any care for her mom, including our client. We asked if she would consent to dropping the lawsuit against our client. She agreed on the spot.


The point of this story is that quality care and compassion may not help you avoid being sued but in the end it goes a long way towards mitigating damages and sometimes completely exonerating your facility.


Nursing Homes Aim for Perfect Care; Families Often Aim for Punishment and to Save Other Residents From a Similar Fate

We handled a case in which an elderly resident developed a urinary track infection (UTI) and died in hospital from the infection itself and other complications.  She had been a resident of the nursing home for many years.  She became ill and died when the nursing home was under different ownership.  Her family sued because they believed that the nursing home caused unnecessary pain and suffering by not recognizing the UTI early enough and by delaying the treatment and care.


As we were picking a jury, the case settled.  The lawyers' fees and The Medicare / Medicaid lien ate up 100% of the agreed upon settlement. We asked the lawyer if the family will be upset because they were not realizing a penny from the settlement. He replied that the family would be satisfied with the settlement because their only goal was to punish the nursing home and ensure that no resident would ever suffer as their beloved family member did. We then asked if the family knew that the poor care took place under different ownership with different staff. He said that was irrelevant to the family.


The point of this story is that families may have an honest mixture of goals including revenge, being a catalyst for change and money. Many lawyers pay lip service to the families' goals. For many lawyers, the only goal is to maximize their fees.   


Law Offices Of David S. Barmak, LLC

David Barmak established his health care law firm in 1984 to deliver legal services, both in transactions and litigation, to organizations and professional practitioners in the health care field. We call this approach "Enterprise-Wide Risk Management" because it includes three important facets:

  1. Counsel and advisement on all aspects of legal risk, from setting up the entity to corporate governance and compliance;
  2. Protection of your practice or business through litigation prosecution or defense in the Courts; as well as regulatory compliance and licensure issues before government agencies; and
  3. Operations improvement through the implementation of enterprise-wise onsite audits, programs and training seminars in the areas of, but not limited to, Fraud and Abuse, HIPAA Privacy and Data Security, Employment, A/R Management, Emergency Preparedness, and Workplace Violence.David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University. He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania.

He is the past Chair of the Health & Hospital Law Section of the New Jersey State Bar Association. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision. The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.


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Copyright, 2011.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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