Saturday, April 9, 2011

Federal Judge Suggest No Insurance Duty in 'Kids-for-Cash' Civil Cases

The federal judge who is overseeing the civil rights suits filed in the wake of the "kids-for-cash” judicial corruption scandal in Luzerne County has handed down a pair of opinions in favor of insurers who are refusing to provide any coverage for the cases.

The rulings by U.S. District Judge A. Richard Caputo stopped short of declaring that the insurers have no duty to provide coverage, but included strong hints that such a judgment would follow.

Instead, in both opinions - Markel International Insurance Co. v. Western PA Child Care and Alea London v. PA Child Care - Caputo was ruling on motions to dismiss the suits filed by the insureds, and the judge’s rejection of those motions means only that the suits may now proceed.

But the conclusory language used by the judge in explaining why policy exclusions would apply to bar any coverage seems to suggest that a final judgment in the insurers’ favor is now a mere formality.

Lawyers for the insurers in both cases said the defendants will be required to file formal answers to the suits and that the insurers will soon after file motions for summary judgment.

Such motions appear nearly certain to be granted, based on language in Caputo’s recent opinions.

Judge Suggests No Insurance Duty in 'Kids-for-Cash' Civil Cases

Legal Guardian Charged With Murder

The legal guardian of a 22-year-old disabled Kearns woman who was found dead March 25 has been charged with first-degree felony murder.

The charges filed Friday in 3rd District Court against 27-year-old Cassandra Marie Shepard also include one count of aggravated abuse of a disabled or elder adult, a first-degree felony, and one count of obstructing justice, a second-degree felony.

Friends and family of Christina Harms said she suffered from the effects of fetal alcohol syndrome

The state Office of the Medical Examiner determined Harms’ cause of death was homicide by positional asphyxiation.

Other details from the medical examiner’s report state Harms’ body and head had bruising that was consistent with chronic physical abuse. Her hands and wrists, which were covered with bandages, were severely damaged with the skin falling off, charging documents say. The report stated Harms was fitted with a makeshift diaper.

Full Article and Source:
Caretaker of Abused Kearns Woman Charged With Murder

Friday, April 8, 2011

Mastro Case: Judge Says Guardian Can't be Paid From Funds for Creditors

A federal bankruptcy judge closed a short, strange chapter Tuesday in the long-running bankruptcy saga of former Seattle real-estate magnate Michael R. Mastro.

Judge Marc Barreca turned down a bid by the guardian for the now-incapacitated Mastro to pay her, and her lawyer, from funds administered by Mastro's chief adversary, court-appointed trustee James Rigby.

That's the same pot of money from which Mastro's many creditors might one day recover a fraction of their losses. The bankruptcy is Washington's largest ever, with Mastro reporting debts of $570 million.

Mastro's guardian, former state Supreme Court Justice Faith Ireland, asked last week for compensation from Rigby's funds because she said Mastro couldn't pay her. She also said she needed her own lawyer because Mastro's longtime attorney had a conflict of interest:

As guardian, she argued, she's required to act in Mastro's best interests. However, she added, Mastro's lawyer is obligated to follow Mastro's instructions from before he was incapacitated — even if they aren't in his best interests.

Ireland's lawyer, Mark Walters, acknowledged in court that the proposal and circumstances were "incredibly unusual — I almost can't believe it."

Full Article and Source:
Judge Says Mastro Guardian Can't be Paid From Funds for Creditors

See Also:
Strange New Twist

Editorial: Help Make State's Most Vulnerable Citizens Safer

For many years, Washington state has enjoyed a reputation of having the most cost-effective, long-term-care systems in the nation, with ample choices to help people remain in their own homes or communities, where care is cheaper and more homelike than in nursing facilities.

Ironically, one of the central innovations of our "best in the nation" system has become a threat to that system — adult family homes. According to the state Department of Social and Health Services, the number of abuse and neglect complaints in these homes rose 53 percent between 2004 and 2010. An investigative series published by The Seattle Times last fall profiled several horrific examples of such abuse.

I recall reading The Seattle Times "Seniors For Sale" series with utter horror, not only because of the brutal abuse described but because it took me back to 2004 when my own parents, both in their 90s, were in need of such care.

Clearly there is a need for additional oversight in an industry that cares for the most vulnerable among us. The state Legislature is currently considering two pieces of legislation that would do just that.

Step one is Senate Bill 5092 and its companion, House Bill 1277, which call for more frequent inspections of adult family homes, steeper sanctions for violations and higher safety standards.

Step 2 is House Bill 1494, which would require agencies that refer families to adult family homes and other supportive housing to clearly disclose their fees and terms of service upfront. Given the abuses that have occurred, both of these measures seem long overdue and the absolute minimum oversight we should expect.

But nothing in Olympia is ever simple or without opponents.

Adult family homes are screaming bloody murder that the license-fee increase needed to implement step 1 would put them out of business. This is nonsense.

Full Editorial and Source:
Help Make State's Most Vulnerable Citizens Safer

Thursday, April 7, 2011

'Caught on Camera'

Employee caught on hidden camera punching, kicking and stripping Alzheimer’s patient, police say.

Full Article and Source:
Woman, 78, Beaten, Stripped by Assisted Living Workers: Police

Ex-TX Judge Takes Plea in RICO Case

A former Texas judge pleaded guilty yesterday to unspecified charges in a federal racketeering indictment, admitting that he took bribes from attorneys and others during his eight years in office in exchange for favorable treatment in court cases.

Abel Corral Limas, who is presently in private practice in Brownsville, was accused in a 17-page indictment of violating the Racketeering Influenced and Corrupt Organizations Act by operating the 404th Judicial Court as an income-producing enterprise, according to the Associated Press and the San Antonio Express-News.

Four unidentified attorneys and a middleman, who are named as persons A through E in the document but not themselves indicted, allegedly were involved in the claimed scheme. It isn't clear what their status presently is in the case. Together, the two lawyers allegedly paid the judge about $235,000 in bribes, according to the Express-News.

Limas reportedly charged fees such as $1,500 to permit those on probation to report by mail, instead of in person, and $700 to change bond terms.

He was released on $50,000 unsecured bond after his guilty plea and is scheduled to be sentenced in July.

Ex-Judge Takes Plea in RICO Case, Admits Role in Alleged $235K+ Court Bribery Scheme

Exploition Convictions Help Raise Awareness

After pleading guilty to exploitation of a vulnerable adult, former certified nursing assistant Cheryl Ann Porter was sentenced March 21 to five years of supervised probation, was ordered to provide more than $25,000 in restitution and received a suspended sentence of three to seven years in prison.

Possibly most importantly, Albany County Prosecuting Attorney Richard Bohling said, was that Porter would now be registered with the Department of Family Services as someone who has exploited a vulnerable adult and is no longer licensed as a CNA.

“We had 10 other counts charged, but basically they were facets of the diamond. This was the jewel,” he said. “It’s been my position in this case from day one with her defense attorney that what she is truly guilty of is exploiting a vulnerable adult. I wanted a conviction for that charge, and I was not prepared to settle for anything less.”

Full Article and Source:
Exploitation Convictions Possible, Serve to Help Raise Awareness

Wednesday, April 6, 2011

Ciavarella Hangs Acquittal Arguments on Evidentiary Issues

Arguing that evidence submitted by the federal government was both time-barred and insufficient, former Luzerne County Common Pleas Court Judge Mark A. Ciavarella Jr. has petitioned a federal court judge to overturn his racketeering and honest services fraud convictions.

Ciavarella wrote that he should be acquitted of those major charges, which would leave him guilty of only tax fraud charges, or provided a new trial.

The former judge used a 20-page brief to support a series of motions that were filed last month, alternately challenging U.S. District Judge for the Middle District of Pennsylvania Edwin M. Kosik's discretion in overseeing the case and the strength of federal prosecutors' evidence against him.

The former judge was accused by federal prosecutors in January 2009 of concocting a "kids-for-cash" scheme with Conahan and taking more than $2.8 million from Mericle and Robert J. Powell, the builder and former co-owner of Pa. Child Care, a for-profit juvenile detention facility.

A jury, however, only found Ciavarella took $997,000 from Mericle in his capacity as a judge, conspired to launder that money and lied about it on his tax returns.

Conahan pleaded guilty to a racketeering charge in an open-ended agreement with federal prosecutors.

Mericle and Powell also admitted wrongdoing for their roles in the case.

Now, Ciavarella is hinging his appeal, in part, on Kosik's decision to bar him from mentioning Zubrod's contention that Mericle's payment was "not a kickback or a bribe in any sense."

Full Article and Source:
Ciavarella Hangs Acquittal Arguments on Evidentiary Issues

'Strange New Twist'

Here's a bizarre new twist in Michael R. Mastro's long-running bankruptcy case, Washington's largest ever:

The guardian appointed last month to look out for the interests of the now-incapacitated former real-estate magnate in court says she can't use the lawyer who has represented Mastro since the proceedings began nearly two years ago — because they represent different things.

Guardian Faith Ireland said in a court filing this week that, while she is charged with representing Mastro's best interests, attorney Thomas Bucknell is obligated to follow Mastro's past instructions.

Even if they aren't in his best interests.

So Ireland, a former state Supreme Court justice, has retained her own lawyer. What's more, she wants his fees, and hers, paid out of funds administered by Mastro's chief adversary, court-appointed trustee James Rigby.

If that doesn't happen, Ireland wrote, she'll have to quit.

Full Article and Source:
Mastro Bankruptcy Case has Strange New Twist

See Also:
Guardian Appointed for Real Estate Magnate Michael Mastro for Bankruptcy Case

Tuesday, April 5, 2011

Relationship between Quality of Care and Negligence Litigation in Nursing Homes

Untangling the relationship between the quality of health care and the risk of negligence litigation is a crucial challenge in medicolegal research. Although previous studies have probed this relationship, an important question for clinicians and health care institutions remains unanswered: does the delivery of high-quality care reduce the risk of being sued?

Methodologic and data problems have frustrated attempts to answer this question empirically. Malpractice claims are typically too rare among individual physicians to allow meaningful assessments of risk. Physician-level quality measures also have substantial limitations. Measures of litigation risk and quality at the hospital level are more robust, but physicians, not hospitals, are the chief defendants in most medical malpractice claims. The absence of a comprehensive national repository of data on all filed malpractice claims adds to the difficulties; it generally forces a choice between limiting investigations to a few institutions and pulling back to ecologic analyses at the area level.

These methodologic constraints are less problematic in the long-term care setting. The vast majority of claims alleging negligence in the delivery of nursing home care target the facility, not the individual clinicians who work in the facility. Quality measures for nearly all nursing homes in the United States are collected routinely, are detailed, and are widely used in research. In addition, the predominance of large nursing home chains provides natural points of convergence for information on many claims from many facilities.

Historically, rates of litigation against nursing homes were low. That changed in the middle-to-late 1990s, with sharp spikes in rates noted in several regions. We linked indicators of the quality of care in nearly 1500 nursing homes in 48 states to data on the incidence of negligence claims against them. Our goal was to compare the litigation experiences of high-performing and of low-performing facilities.

Claims data:
Five of the largest nursing home chains in the United States provided us with data on tort claims brought against their facilities. The facilities operated in 48 states, and the claim periods varied by chain: 2000–2006 for chain 1, 1998–2005 for chain 2, 1998–2005 for chain 3, 1998–2005 for chain 4, and 2000–2005 for chain 5. Every claim in each period was included, regardless of whether it was resolved in or out of court and whether it resulted in a payment to the plaintiff. We defined a claim as a written demand for compensation for injury.

Full Article and Source:
The New England Journal of Medicine: Health Policy and Reform

Scott Bloch Will Spend One Month in Jail

On March 30, 2011 Judge Deborah A. Robinson denied Scott Bloch’s motion to reconsider his guilty plea on the criminal contempt of Congress case USA v Scott Bloch.

Scott Bloch was the former Special Counsel for the Office of Special Counsel and was accused of dismissing hundreds of whistleblower cases without investigation.

Scott Bloch, in the face of a federal investigation, asked Geeks on Call to wipe his computer clean of all digital files thus destroying evidence that the FBI was seeking in the Congressional investigation. On March 30, 2011 Scott Bloch was sentenced to one month in prison by a D.C. federal court.

Full Article and Source:
Medical Whistleblower

Judge Honored for 16 Years of Service

With balloons on the bench and cake and punch on a table off to the side, Calhoun County Probate Court Judge Gary Reed entered his courtroom Friday to applause.

More than 150 people were there to mark Reed's retirement at midnight from the bench after 16 years.

While his wife, mother, brothers, fellow judges, lawyers, staff and friends looked on, several speakers said Reed, who sat as a Juvenile Court Judge in the Family Division of Circuit Court, was fair and compassionate from the bench, especially dealing with children.

Reed said his greatest satisfaction was "protecting kids from harm from others and sometimes from themselves."

Reed's term does not end until Dec. 31, but state officials have not made an appointment to replace him and his duties have been spread among other judges.

Full Article and Source:
Judge Honored for 16 Years of Service

Monday, April 4, 2011

Supreme Court Denies Lokuta a Second Hearing

The state Supreme Court has denied former Luzerne County judge Ann Lokuta's request for a reargument in her bid for reinstatement to the county bench.

Lokuta was removed from the bench more than two years ago following a trial before the state Court of Judicial Discipline. The court found she had mistreated court employees and attorneys, repeatedly showed up late for hearings and failed to recuse herself from a case involving a family that supported her politically.

The Supreme Court rejected Lokuta's bid to overturn the discipline court's verdict earlier this year. Her attorneys say she plans an appeal to the U.S. Supreme Court.

Supreme Court Denies Lokuta a Second Hearing

See Also:
Judge Ann Lokuta Loses

Charged with Stealing From Children's Home

The executor of an estate intended to benefit the Tennessee Children's Home has been charged with stealing from it.

Daryl Bornstein faces nine felony counts. His wife, Janalyn Bornstein, faces five counts.

Bornstein was the executor of an $800,000 estate, left to the Children's Home by Nashville Firefighter Raymond Simmons.

After allegations of mismanagement, a probate court removed Bornstein as executor last year. By then, an official with the Children's Home says only about $50,000 was left.

Daryl Bornstein is jailed on $2.2 million bond.

Executor Charged With Stealing From Children's Home

Sunday, April 3, 2011

Jury Decides Richard Morse is Incapacitated

After a rare trial, a Clark County jury has found a Vancouver man incapacitated and unable to make decisions about his money and medical care.

Jurors deliberated for more than nine hours Thursday and Friday before deciding shortly after 1 p.m. Friday that a third-party professional guardian should be appointed to make financial and medical decisions on behalf of Richard Morse, 72. The jury’s ruling that Morse is incapacitated means they found him unable to provide for his safety and health and manage his finances.

The case was rare in that it was apparently the first time that 12 Clark County citizens were asked to decide a guardianship case, rather than a judge.

At least 10 jurors were required to find Morse incapacitated in order to strip him of his rights to make his own decisions. Morse preserved some of his rights, but the 10-juror requirement was met on all the “big ones,” said Morse’s attorney, Jim Senescu of Dimitrov & Senescu.

Addressing Superior Court Judge John Wulle, Senescu said immediately after the ruling, “I will explain to Mr. Morse he has essentially lost the rights the jury has voted on.”

One juror sided with Morse on all counts, while another joined to make it a 10-2 margin on some decisions over Morse’s fitness.

Senescu after the ruling returned to a point he made in his closing argument that Morse, a veteran of the Vietnam War, lost rights he once fought to preserve. “That says it all,” he said.

The unusual case was brought by Vancouver Health & Rehabilitation Center, where Morse has been living for more than a year. The center’s attorney, Rachel Brooks, argued during the four-day trial that Morse had problems living on his own and managing his medicine and his health.

Concerning his finances, Morse has a $600,000 estate yet never has had a bank account, Brooks argued, and he’s not used to paying bills.

Senescu said that Morse would appeal.

Specifically, a third-party guardian now will decide when and where Morse gets medical care. Financially, Morse cannot enter into a contract, engage in real estate transactions or sue or be sued.

Morse retained the right to vote, make or revoke a will, marry or divorce, drive a vehicle and make decisions regarding social aspects of his life.

A hearing was scheduled for 10:30 a.m. April 27 to decide on a guardian for Morse.

“I don’t think this is the end,” Morse said. “Now it’s up to the Lord.

Full Article and Source:
Guardianship Jury Finds Man, 72, Unable to Care for Self

See Also:
Jury Receives Rare Guardianship Case

72 Year Old Man Takes Guardianship Case to Jury

Editorial: Don't Force Iowa Families to Sign Away Their Rights

Most of the Iowans living in nursing homes and assisted living centers aren't in any position to advocate for themselves. They don't file complaints with state inspectors. They don't call newspaper reporters when they can't get help with a problem. They are too sick.

It's their adult children - if they have them - who try to right any wrongs. Since the Register's Opinion staff started the Aging in Iowa series last year, adult children have contacted us a few times a month concerning problems with a parent's care.

Wes Stevens called recently. His mother, Polly, is an 84-year-old Iowan who had been living at Emeritus at Urbandale, an assisted living center, for more than a year. She was in the dementia unit and needed around-the-clock care. (See the essay, at left, about her family.)

This family's experience illustrates a problem Iowa lawmakers should address: a two-page form Polly's daughter, Deb Pickering, signed when she admitted her mother to the home. It is titled, "Agreement to resolve disputes by binding arbitration."

Wes and Deb considered it just another one of many documents they were asked to sign. Twenty months later, after their mother fell and spent more than a week in a hospital, they now understand what the form means: They can't file a lawsuit against Emeritus. Instead, they must enter "arbitration," which replaces a trial before a judge or jury. A neutral party has the final word on a complaint.

Iowa lawmakers should prohibit residential care facilities from forcing families to sign such arbitration agreements.

Full Editorial and Source:
Don't Force Iowa Families to Sign Away Their Rights

Iowa Ombudsmen's Job Plan Questioned

Iowa's top advocate for seniors in nursing homes wants to have her job performance evaluated by the industry she oversees.

At the same time, the director of the Iowa Department on Aging is telling the state's eight local long-term care ombudsmen that they should not speak out about a recent dramatic cut in the number of state nursing home inspectors.

"That is unconscionable," said John Tapscott, a former state legislator who now advocates for the elderly. "You can't tell our ombudsmen not to speak out on the issues that affect their constituents."

According to federal law, each of the nation's long-term care ombudsmen is to advocate independently for the elderly residents of care facilities - a job that historically has put the ombudsmen at odds with both nursing homes and state regulators.

But new questions are being raised about whether Iowa's ombudsman, Jeanne Yordi, is working independently or advocating effectively for the elderly.

Legislation passed by the Iowa Senate last week calls for the creation of an "advisory committee" that would review and comment on the ombudsman's investigative procedures while participating in the ombudsman's annual performance review.

Full Article and Source:
Iowa Senior Care Advocate's Job Plan, Silence Questioned>