Saturday, January 4, 2020

Additional charges against Pepper Pike attorney accused of misappropriating funds: Update

Dorothea Kingsbury
By John Caniglia

CLEVELAND, Ohio — A Pepper Pike attorney accused earlier this year of misappropriating more than $1.1 million of her clients’ money faces additional charges involving her taxes.

Dorothea Kingsbury is accused in Cuyahoga County Common Pleas Court of failing to file state tax returns since 2014. The allegations are in addition to charges that she withdrew money from her clients’ accounts without their knowledge, according to court records.

All but one of the 22 clients in the case are developmentally disabled, and many cannot read or write.

Kingsbury was originally scheduled to go to trial in August on charges of theft, fraud and money laundering, but the case was pushed back. Prosecutors obtained an indictment on the tax charges in October. The cases are set for trial in April before Judge Dick Ambrose.

Her attorney, Larry Zukerman, said the new charges are an attempt to pressure Kingsbury.

“This is a classic case of overcharging,” Zukerman said. “Prosecutors, on the eve of trial, filed additional charges against Ms. Kingsbury, which appear on the surface to be a coercive tactic to force her into a plea bargain.

“Ms. Kingsbury denied the allegations at her arraignment and plans to aggressively defend against the allegations at trial.”

Prosecutors said they did not bring the charges to push Kingsbury into a plea deal. Rather, they said, the charges stem from a continuing investigation.

“Upon learning of an active [IRA] account owned by the defendant, [prosecutors] charged Kingsbury with new offenses that were not discovered until months after the first indictment,” prosecutors said in an emailed statement.

The charges “address the criminal conduct and allow for the protection and forfeiture of the funds for victims’ restitution,” the statement said.

An indictment filed in February says Kingsbury, 67, made more than 200 questionable shifts of funds, or transactions that cannot be explained.

Prosecutors and investigators said Kingsbury withdrew and transferred hundreds of thousands of dollars over the years from the accounts of clients to conceal what she had taken from others, including more than $110,000 that she took for herself.

What she did with the misappropriated funds is unclear, those authorities said.

Kingsbury is free on $10,000 bond. If convicted, she could sentenced to more than 10 years in prison.

Besides the criminal case, a lawsuit has been filed against Kingsbury. The family of Janis Paul, a Cleveland woman with a severe mental impairment, filed suit in September 2018 against Kingsbury in Cuyahoga County Probate Court, demanding an accounting of her trust.

Records show Kingsbury had served as trustee to the trust from July 30, 2011, to Jan. 26, 2015. Investigators found Kingsbury made 50 questionable transfers from Paul’s account for nearly $300,000, according to records prosecutors filed. The case in probate court is pending.

In most of the cases in the indictment, Kingsbury served as a trustee of special-needs trusts. The trusts often are set up by families or guardians to provide money for basic purchases or needs to a person with disabilities. In many cases, families hired Kingsbury to oversee the accounts.

The trustee must submit an accounting of the finances to the beneficiary’s court-appointed guardian. Guardians became upset when Kingbury, in her role as trustee, failed to submit annual status updates on time, prosecutors and investigators said.

Full Article & Source:
Additional charges against Pepper Pike attorney accused of misappropriating funds: Update

Our View: Our elderly citizens require better protection

Most of the state’s 500-plus guardians are professional, conscientious, devoted to the best interests of their wards and law-abiding. But some are not.

The concept of “retirement,” along with a government social welfare programs to support old folks who no longer worked, dates to the 1880s. That’s when German Chancellor Otto von Bismarck concluded that a little socialism for the elderly - Germany set retirement its age at 70 - was better than blanket entitlement programs for all his constituents.

As Bismarck’s idea circulated across the Atlantic, Florida didn’t take long to catch on. The New York Times noted a few years ago that by 1910 middle-class retirees joined the wealthy in discovering the Sunshine State as an appealing place to live out their golden years. Retirement communities began popping up within the next two decades.

Thus, for a century Florida has marketed itself and catered to the elderly, and until recent challengers like Arizona and the Carolinas emerged, has remained the top destination of elders seeking a retirement pasture.

But that influx of senior citizens made Florida a target-rich environment for various hucksters, shysters and ne’er do wells out to con them - or harm them in other ways. And on occasion that abuse came from those we’ve entrusted to watch out for their interests.

Now, state Rep. Colleen Burton has joined an effort to better protect our seniors.

The Lakeland Republican has sponsored a bill that would toughen oversight of the state’s guardianship program for seniors, which is managed by the state Department of Elder Affairs.

Focus on this arm of the tiny agency began last summer after media reports surfaced about Rebecca Fierle, an Orlando-based guardian. The Florida Department of Law Enforcement investigated her after one of her clients, Steven Stryker, 75, died from choking on food while hospitalized in Tampa. Fierle reportedly filed a “do not resuscitate” order, which precluded hospital staff from treating Stryker, without permission from either Stryker or his family. Subsequently, an audit by Orange County determined Fierle had billed Advent Health more than $4 million over 10 years, double-billing the hospital system and court for the same services.

A few months before Stryker’s case became news, the website reported on Lillie White, an 88-year-old from Palm Coast. During an August 2016 doctor’s appointment, while her niece remained in the waiting room, a guardian took White and declined to say where she went. Two years later White’s family learned that her sole granddaughter, who had been cut out of White’s will, had persuaded a judge White needed guardianship. White, who was worth $4 million, was housed in an assisted living facility 35 miles from home. The guardian, without White’s family’s knowledge, sold her house and some of her other assets to pay the fees of the guardian as well as a court-appointed lawyer and other people overseeing her case.

WFTS in Tampa recently reported on a Pinellas County guardian charged with draining her 92-year-old client’s bank account of $541,000 in just 10 months. She had convinced him to grant her power of attorney over his affairs and proceeded to pay herself $1,600 a day.

Meanwhile, the state’s director of the program resigned last year amid a lengthy backlog complaints about guardians - which the Department of Elder Affairs now says has been addressed.

In response, Burton and Sen. Kathleen Passidomo, R-Naples, have filed bills that will strengthen protections for the more than 3,800 Floridians managed by guardians.

The measures, among other requirements, mandate that:

– Judges look more closely at possible conflicts of interest and other disqualifying factors before appointing a guardian;

– Guardians seek court approval for DNR orders, and be prohibited from seeking their own appointment;

– Potential kickbacks be outlawed.

We believe that most of the state’s 500-plus guardians are professional, conscientious, devoted to the best interests of their wards and law-abiding.

But as noted above, some are not. And so in order to protect Florida’s elderly who need this service, as well as the state’s reputation as a haven for senior citizens, we must have stricter rules governing this program. For working for that, we applaud Rep. Burton and Sen. Passidomo.

Full Article & Source:
Our View: Our elderly citizens require better protection

Dementia: Warning Signs for Family Caregivers

How to spot early indicators that your loved one may have Alzheimer’s or dementia

istock/Getty Images

En espaƱol | From age 50 on, it’s not unusual to have occasional trouble finding the right word or remembering where you put things.

But persistent difficulty with memory, cognition and ability to perform everyday tasks might be signs that something more serious is happening to a loved one’s brain.

Dementia isn’t actually a disease, according to the Mayo Clinic. It’s a catch-all term for changes in the brain that cause a loss of functioning that interferes with daily life.

Dementia can diminish focus, the ability to pay attention, language skills, problem-solving and visual perception. It also can make it difficult for a person to control his or her emotions and lead to personality changes.

About 1 in 11 Americans age 65 and older are living with the condition, according to a 2017 study published in the journal JAMA Internal Medicine. A range of brain illnesses or injuries can lead to dementia, with Alzheimer’s disease accounting for 60 to 80 percent of cases.

A loved one showing symptoms of dementia needs to see a medical expert who can conduct tests and come up with a diagnosis. If a loved one has dementia, you’ll want to plan how you will manage that care, especially as the condition progresses.

But it’s also important to rule out other medical conditions with dementia-like symptoms that may disappear with treatment such as infections and side effects of medications.

What to watch for

Here are some of the warning signs identified by dementia experts and mental health organizations:

• Difficulty with everyday tasks. Everyone makes mistakes, but people with dementia may find it increasingly difficult to do things like keep track of monthly bills or follow a recipe while cooking, the Alzheimer’s Association says.

They also may find it hard to concentrate on tasks, take much longer to do them or have trouble finishing them.

• Repetition. Asking a question, hearing the answer and then repeating the same question 15 minutes later, or telling the same story about a recent event multiple times, are causes for concern, internist and geriatric specialist Jason Karlawish, a professor of medicine at the University of Pennsylvania, noted in a 2018 article for AARP.

• Communication problems. Observe if a loved one has trouble joining in conversations or following along with them, stops abruptly in the middle of a thought or struggles to think of words or the name of objects.

• Getting lost. People with dementia may have difficulty with visual and spatial abilities. That can manifest itself in problems like getting lost while driving, according to the Mayo Clinic.

• Personality changes. A loved one who begins acting unusually anxious, confused, fearful or suspicious; becomes upset easily; or loses interest in activities and seems depressed is cause for concern.

• Confusion about time and place. Loved ones who forget where they are or can’t remember how they got there should raise alarms. Another worrisome sign is a person becoming disoriented about time — for example, asking on a Friday whether it’s Monday or Tuesday, according to Karlawish.

• Troubling behavior. If your family member seems to have increasingly poor judgment when handling money or neglects grooming and cleanliness, pay attention.

Some people who experience memory loss or have difficulty with attention, decision-making language or reasoning may have a condition known as mild cognitive impairment. The condition causes a noticeable decline, but the changes are less severe than with dementia and a person can still perform normal daily activities, according to the Cleveland Clinic.

People with mild cognitive impairment are at an increased risk of developing dementia.

Where to find help

When your loved one is displaying troubling symptoms, a trip to the primary physician is often the first step. But to get a definitive diagnosis, you’ll need to see a specialist such as a neurologist, geriatrician or geriatric psychiatrist.

If you can’t find one, the National Institute on Aging recommends contacting the neurology department of a nearby medical school. Some hospitals also have clinics that focus on dementia.

Specialists will want to know about the patient’s personal and family medical history. A close relative or relatives having had Alzheimer’s is a major risk factor.

Recent research suggests that a prevalence among even members of your extended family can increase your dementia risk. Doctors also will conduct physical and neurological exams to rule out other treatable causes for dementia symptoms.

Some of the methods that doctors use to diagnose dementia:

• Cognitive and neuropsychological tests assess language and math skills, memory, problem-solving and other types of mental functioning.

• Lab tests of blood and other fluids, including checking levels of various chemicals, hormones and vitamins, can help rule out nondementia causes for the symptoms.

• Brain scans such as CT, MRI or PET imaging can spot changes in brain structure and function. These tests also can identify strokes, tumors and other problems that can cause dementia.

• Psychiatric evaluation can determine whether a mental health condition is causing or affecting the symptoms.

• Genetic tests are important, especially if someone is showing symptoms before age 60.

The early onset form of Alzheimer’s is strongly linked to a person’s genes, according to the Mayo Clinic. Talk with a genetic counselor before and after getting tested.

Full Article & Source:
Dementia: Warning Signs for Family Caregivers

Friday, January 3, 2020

Two residents at separate central Pa. nursing homes die from traumatic neck injuries

By Jana Benscoter

Two residents died at separate Lancaster County nursing homes in 2019 as a result of workers not complying with patient transfer policies, according to a media report.

The coroner determined both residents suffered from traumatic neck injuries after falling while being transferred by one worker instead of the required two, Lancaster Online reported.

In its report, the Pennsylvania Department of Health did not name the residents or employees. The incidents happened on Aug. 1 at Lancashire Hall and Sept. 8 at Mennonite Home Communities.
The reports detail what happened. 

During the Lancashire Hall incident, Lancaster Online reported that the "nurse aid transferring the resident committed another violation by not notifying a nurse of the incident. The report says the nurse aid instead claimed the resident was found in bed bleeding from the forehead.”

Since that incident, the department of health noted in its report that “numerous meetings to re-educate staff held as part of the plan of correction, along with reviews extending one month before and six months after the incident,” Lancaster Online reported.

The other incident occurred at Mennonite Home, which released the following statement to LNP: “an unfortunate and isolated incident due to the conduct of an employee who was terminated following a thorough investigation.”

"The entire Mennonite Home team is deeply saddened by this event, and we have expressed our sincere remorse to the resident’s family,” the statement said. “Mennonite Home Communities has a long and cherished history of providing outstanding care and we are committed to ensuring the safety and wellbeing of our residents and team members.”

A follow-up survey the department conducted Dec. 19 "validated that Mennonite Home successfully implemented the approved plan of correction,” which included education and audits, according to the statement.

Full Article & Source:
Two residents at separate central Pa. nursing homes die from traumatic neck injuries

The Family Wanted a Do Not Resuscitate Order. The Doctors Didn’t.

Carlo Giambarresi, special to ProPublica
Andy Jurtschenko told his children that he didn’t want to be a burden on them. But after he suffered brain damage during a heart transplant at a New Jersey hospital, his medical team deflected their request for a DNR.

by Caroline Chen

Three weeks after his heart transplant, Andrey Jurtschenko still had not woken up.

A towering figure at 6 feet, 3 inches, with salt-and-pepper hair and matching mustache, Jurtschenko — known to one and all as Andy — delighted friends and family with his seemingly endless supply of wisecracks and goofball humor. On April 5, 2018, he went into surgery at Newark Beth Israel Medical Center in Newark, New Jersey, for a new heart and what he hoped would be renewed energy. He dreamed of returning to his carpet business and to enjoying New York Mets games on the weekends after years of exhaustion and strain caused by congestive heart failure.

Typically, patients begin reviving within 24 hours after transplant surgery. Andy didn’t. As the days passed, his children, Chris and Megan Jurtschenko, became increasingly concerned. On April 26, a neurologist called Chris and explained what an MRI the day before had shown: Andy’s brain had likely been deprived of oxygen during the procedure. The doctor said he “would basically be in a vegetative state,” Chris recalled in an interview. Chris asked to meet with the medical team the next day.

The devastated family took some comfort in knowing what Andy would have wanted. In several conversations before the surgery, he had made clear that “he did not want to be a burden on us, he did not want to live in an incapacitated form,” Andy’s older sister, Anna DeMarinis, said.

Now that their father could not speak for himself, Chris and Megan, as Andy’s next of kin, had to be his voice. On April 27, they went to the hospital for the meeting. Still hoping Andy might recover, they did not seek to withdraw his feeding tube or medications. But they asked for a do not resuscitate order. If he were to stop breathing or have no pulse, a DNR order would direct doctors not to compress his chest, use a machine to force air into his lungs or give electric shocks to restart his heart.

If his heart stopped, “we weren’t going to force him to stay,” Megan said.

Dr. Margarita Camacho, the surgeon who had performed the transplant, deflected their request, the siblings said. She told them that it was too early for a DNR, and that they shouldn’t give up hope because their father might recover, his children said. At Camacho’s urging, Megan and Chris said, they let it go. No DNR order was signed that day. The family would continue to press the issue and finally secure a DNR more than a month later.

Megan and Chris Jurtschenko waived their privacy rights to allow the hospital to discuss their father’s case with ProPublica. Asked directly about the meeting with the surgeon and why the family’s wishes were not followed at the time, Linda Kamateh, a spokeswoman for Newark Beth Israel and Camacho said in an email: “Physicians are obliged to give their best medical advice based on a patient’s medical condition. However, ultimately the decision to have a DNR resides with the patient. The hospital believes that it adhered to those principles in its discussions with the Jurtschenko family.”

Except for “a very specific set of dire medical circumstances, in which a patient may require resuscitation,” a DNR “does not otherwise affect ongoing care and treatment,” Kamateh wrote in a separate email. “... These decisions are often revisited and reassessed within the course of treatment.”

Andy’s medical record doesn’t mention the children’s request for a DNR. “The family was able to express their concerns and decided to continue to see how PT [patient] progresses over the next few weeks,” a social worker wrote.

Bearing out Camacho’s prognosis, Andy would awaken and recover some cognitive ability — but only enough to attain the incapacitated state he had dreaded, not to become again the man that his children knew and loved. They remained adamant that, if his heart stopped, he would have preferred to die than to be resuscitated for such an existence.

The American Medical Association’s code of medical ethics states, “The ethical obligation to respect patient autonomy and self-determination requires that the physician respect decisions to refuse care.” Yet Newark Beth Israel’s transplant team was often reluctant to sign DNR orders, according to four former employees and an audio recording of a staff meeting. While the team wouldn’t outright refuse, especially when patients or their family members repeatedly asked, it often delayed or discouraged DNRs, especially before key dates tied to performance metrics such as the one-year survival rate, or the proportion of people undergoing transplants who are still alive a year after their operations, three of the ex-employees said.

The team also lacked a process for discussing beforehand whether patients would want CPR if their pulse or breathing stopped after their operations, the former employees said. Typically, the staff addressed the issue only if a patient’s condition became critical and family members were insisting on a DNR.

Newark Beth Israel’s DNR policies are consistent with best practices, Kamateh said. “These policies guide our clinical teams in support of the treatment decisions of our patients and their families, from the most routine procedures to the most complex and stressful situations,” she said. “We strive to explain care options and deliver sound medical advice in ways that are timely and clear, yet also respectful and sensitive.”

At least indirectly, the concern about DNRs may have stemmed from Newark Beth Israel’s aggressive approach to transplants. Newark Beth Israel’s heart transplant program is one of the top 20 in the U.S. by volume, having grown under Dr. Mark Zucker, its director for three decades, and Camacho, the main surgeon. As of November, the hospital had performed 1,096 heart transplants.

A banner at Newark Beth Israel touts the
hospital’s heart transplant program.

(Jonno Rattman for ProPublica)
The program is known for taking on sicker patients who might be rejected at other programs. From 2014 through 2017, compared with its counterparts in New Jersey and nearby states, Newark Beth Israel’s transplant team operated on a higher percentage of patients who were older, more overweight or obese, and who had been in an intensive care unit while awaiting transplant, according to the Scientific Registry of Transplant Recipients. (The registry is funded by the U.S. Department of Health and Human Services to track and analyze transplant outcomes.) In those years, Newark Beth Israel also had a higher percentage of patients who had been on a pump or some other support before transplant, which increases the difficulty of surgery. This stance filled an important gap in care and helped the program grow both in size and revenue; hospitals typically bill insurers about $1.4 million for a heart transplant.

“While the Advanced Heart Failure Treatment and Transplant Program at NBI does not seek out cases that are more complex than those handled by other prestigious transplant programs, patients from other programs have been referred to our care and been successfully transplanted,” Kamateh said. “Our clinical decisions are driven by the best interest of our patients, including their personal preferences, not by statistical results.”

Scores of grateful patients say they owe their lives to Zucker and Camacho.
“Dr. Zucker has saved my life again and again,” said Mark Reagan, a retired AIG executive in Bluffton, South Carolina. Reagan received his heart transplant at Newark Beth Israel in March 2003 after suffering from congestive heart failure for eight years. Reagan said his arteries were initially too narrow for a transplant, but Zucker opened his arteries with an experimental treatment so he could get onto the waitlist. After his surgery, Reagan became part of the “Hearty Hearts” volunteers at the hospital who advocate for organ donations and lift the spirits of other transplant recipients. Through “Hearty Hearts,” he said, he has met several transplant candidates who were turned away by other hospitals but “walked out of Newark Beth Israel with a new heart, because of Mark.”

Accepting more difficult cases, though, can raise the risk of adverse outcomes. According to former employees and audio recordings of staff meetings, Newark Beth Israel’s transplant team worried about its one-year survival rate, which would drop below the national average in 2019. That anxiety, the employees said, appeared to underlie the team’s unwillingness to sign DNR orders, since resuscitation might be needed to keep a patient alive.

Besides Andy Jurtschenko’s children, two former NBI employees, including one with firsthand knowledge, said that the transplant team initially balked at a DNR order for him. By ruling out extreme measures to revive him, a DNR could conceivably have hastened Andy’s death and lowered the program’s one-year survival rate. Whether or how much metrics influenced Camacho’s rebuff of the DNR request is unclear. While DNR orders are documented in the medical record, unapproved requests — and the reasons behind those decisions — generally aren’t.

There can be few greater points of contention between physicians and families, few so infused with emotion and anguish on both sides, than whether to resuscitate someone on the verge of death. Hospitals have been sued and nursing homes fined for resuscitating patients who had a DNR order on file. Or families may urge a medical team to initiate resuscitation that a physician believes is futile, or even torture, for a patient with a terminal diagnosis. The decision is inherently subjective, and ultimately, doctors are supposed to respect the wishes of patients — or, if they can’t speak for themselves, their health care proxy.

A heart transplant itself is an act of resuscitation; there is a moment, after the old heart has been removed and the new organ not yet implanted, when the patient is only kept alive by a machine. If a surgery goes badly and a patient suffers serious complications, a request for a DNR can become a flashpoint, revealing the pressures that transplant teams are under to save patients, make sure that scarce donated organs don’t go to waste and meet performance metrics.

Newark Beth Israel’s heart transplant program is
one of the top 20 in the nation by volume. Andy
Jurtschenko, who received a heart there, hoped
it would allow him to go back to work at his
carpet business. (Jonno Rattman for ProPublica)
More so than almost any other field of medicine, organ transplantation in the United States is tightly regulated. The U.S. Centers for Medicare and Medicaid Services can halt reimbursement if they find a program falling short of their standards. Transplant programs in the U.S. are constantly aware of the importance of keeping their survival rates at or above national medians, said a heart transplant surgeon at another hospital in the Northeast. “We are only judged on the numbers, on the results,” said the surgeon, who requested anonymity to avoid jeopardizing future job opportunities. “My main job is to treat percentages, not patients.”

In that context, medical staff can be reluctant to relinquish the option of resuscitation. “The 365-day problem is real, and if you gave truth serum to every transplant doctor in America, including me, and you asked if we didn’t all keep an eye on it, and if we said we didn’t, that would be a lie,” said Dr. David Weill, a consultant to transplant programs and former director of the heart-lung transplant program at Stanford University Medical Center. As the one-year anniversary approaches, Weill added, he’s seen doctors tell patients, “‘It’s too early [for a DNR], I’ve seen people recover, she has a strong will to live,’ these kind of things.”

Such attitudes extend beyond transplant wards to other types of cardiovascular surgery that judge success by survival metrics, though their key target is typically 30 days, not a year. An acute care nurse practitioner with more than two decades of experience in open-heart surgery care told ProPublica she’s worked in several cardiac wards where families were discouraged from withdrawing life support or asking for a DNR before 30 days had elapsed.

“Families are lied to, they’ll be told, ‘It’s too soon,’ then after 30 days, doctors will say, ‘Make them a DNR, go ahead,’” said the nurse, who requested anonymity because she feared retaliation from her employer. (She hasn’t worked at Newark Beth Israel.) “Unless you have a medical directive and, if you’re unable to speak for yourself, a relative with power of attorney, the hospital’s driving the bus.”

Metrics aren’t the only reason that surgeons balk at DNR requests. They are trained to do everything they can to save lives. When a patient dies, while other doctors might blame a treatment protocol or the deceased’s lifestyle, surgeons often feel personally responsible, according to Dr. Gretchen Schwarze, associate professor of vascular surgery at the University of Wisconsin School of Medicine and Public Health. In a 2010 study, Schwarze posed hypothetical scenarios to 10 surgeons, including a transplant specialist. One scenario described a patient who remained intubated and on a feeding tube a week after surgery. A family member then produces a previously undisclosed directive from the patient, asking not to be sustained by life support.

The surgeons “expressed significant emotional reaction,” including “betrayal, unhappiness, disappointment,” Schwarze reported. They felt that there was an implicit contract that patients entered into when signing up for surgery. One surgeon put it this way: “There is a commitment made by both the patient and the surgeon to get through the operation, as well as all of the post-operative issues that come up.” While acknowledging that they were being “paternalistic” and contradicting the patient’s directives, several of the surgeons in the study said they would refuse to withdraw life support in Schwarze’s scenario.

One reason for conflicts over DNRs is that most patients aren’t asked ahead of time about their desires for post-operative care. A 2010 study of admissions at two U.S. hospitals found that only one-third of seriously ill patients were asked what code status they wanted if they went into cardiac or respiratory arrest, and those conversations on average lasted one minute.

“We tend to wait too long to have a meaningful conversation. We wait until someone’s been in the ICU for a while, until the point that the patient cannot participate in the conversation,” said Luke Adams, a critical care nurse in Pennsylvania who founded a company called Advanced Care Solutions, which helps people write advance directives and navigate end-of-life decisions.

During a heart transplant operation, a patient cannot have a DNR order in place. The new heart may need to be shocked or stimulated with chest compressions to help it function properly. These actions would be considered “resuscitation.”

After surgery, however, a patient should be able to ask for a DNR order at any time, and in the case of patients who can’t speak for themselves, the request can come from a surrogate, usually the closest relative. A DNR order must be signed by a physician and put in the medical record. In New Jersey, DNR orders are typically entered as part of a form called a POLST, short for Practitioner Orders for Life-Sustaining Treatment, which also includes sections for other medical directives, including whether to use artificial nutrition and antibiotics.

Resuscitation is no assurance of either immediate or long-term improvement. A 2003 study of in-hospital resuscitation tracked 14,720 cardiac arrests and found that 44% of patients regained circulation, but only 17% recovered enough to be discharged from the hospital.

Sometimes a DNR order is the obvious choice, said Dr. Perla Macip-Rodriguez, assistant professor of internal medicine at the Boston University School of Medicine, who specializes in palliative care and geriatrics. She gave the example of a patient with late-stage cancer that is no longer treatable. If the patient’s heart stopped, CPR would not affect the terminal diagnosis. “It’s just going to prolong their dying process.”

Other cases are murkier. Andy Jurtschenko’s brain was severely damaged. If his heart stopped and he was resuscitated, nobody could know what the outcome would be.

When the prognosis is uncertain, the medical team should focus on the patient’s individual goals, said Dr. Jessica Zitter, an internist at Highland Hospital in Oakland, California, who practices both critical care and palliative care. “We should never, ever force treatment on a patient or their surrogate,” she said. “There’s no way you can ever insist on someone remaining on a machine or being resuscitated so long as the family has the patient’s best interest in mind. That’s called autonomy.”

Megan Jurtschenko’s fondest childhood memories involve visiting her father’s carpet store, climbing on the stacks of samples and running her fingers over soft rugs while listening to him bantering and laughing with his clients.

The U.S.-born son of Eastern European immigrants, Andy Jurtschenko worked his way up through local furniture chains until he was able to open his own store, Route 46 Carpet, in West Paterson, New Jersey. His gift for patter made him a natural salesman. Divorced, he stayed close to his children. On his Facebook page, he described himself as “a caring American.”

But in 2012, Andy began to feel tired and short of breath. Doctors diagnosed him with congestive heart failure. By 2014, as his heart became weaker, Andy had to stop working and go on disability. He was 57 years old. It frustrated him to rely on the government for financial support.

“All he ever wanted was to care for himself and his family. Losing that was not easy for him,” Megan said.

Megan and Chris knew Andy would not want to be kept alive by extraordinary means. Just surviving wasn’t his goal. His children wanted his caregivers to understand this as well.

On May 21, Andy was transferred from Newark Beth Israel to a rehab facility, JFK Johnson Rehabilitation Institute. Within a few days, a staff member of the facility called, asking for medical directives.

“They described him as very high risk for code, and they wanted to establish what we wanted,” Megan recalled. If his heart were to stop, she instructed them, “they would not do any chest compressions, no electric shock. And if his lungs stopped functioning they would not put in a breathing tube. We wanted no artificial care.”

Chris noted the difference between the rehab facility and the hospital. JFK “came to us and said we need to put this in place, where Newark kind of avoided it,” he said.

Hackensack Meridian Health, a New Jersey network that includes JFK Johnson, “has comprehensive DNR policies that we consider an essential part of providing high-quality patient care,” spokeswoman Mary Jo Layton said in an email. “Our teams work collaboratively with patients, their families and loved ones to ensure our patients’ wishes are honored.”

In September 2018, five months after Andy’s surgery, another Newark Beth Israel patient, Darryl Young, suffered brain damage during a heart transplant. As ProPublica has reported, Zucker instructed his staff to keep Young alive and not to discuss palliative care options, such as hospice, with his family until the one-year anniversary of his surgery.

If Young were to die, the hospital’s annual one-year survival rate, already at its lowest in a decade, would drop even further. In a previously unreported audio recording obtained by ProPublica, Zucker told his staff at a meeting in April 2019, “You can send him back to a rehab facility, but if you make him DNR at the rehab facility — they will make him DNR — it’ll be a problem for us.”

Zucker continued, “So, I don’t really know what to do except to tell you that I recognize what I’m asking, I said myself I’m not sure that this is ethical, moral or right, but for the global good of the future transplant recipients, the others who come along, this program can’t be put into an SIA.”

SIA stands for systems improvement agreement, a process through which CMS can force a transplant program to get back into compliance. It typically costs a hospital at least $2 million. After the April meeting, Zucker’s team never released Young to a rehab center, and he remains at the hospital. Young’s sister, Andrea, did not request a DNR, and the team only discussed the option with her after ProPublica’s article was published, she said.

The Centers for Medicare and Medicaid Services, the FBI, the New Jersey Department of Health and the State Board of Medical Examiners are investigating the hospital’s treatment of Young. The hospital has placed Zucker on leave pending the results of its own review.

Newark Beth Israel and Zucker did not respond to questions about his comments regarding a DNR for Young.

On June 1, 2018, Megan Jurtschenko went to visit her father at the rehab facility, but his room was empty. After being transported to Newark Beth Israel the previous day for a checkup, he hadn’t returned to JFK Johnson.

Panicked, Megan grabbed an Uber to the hospital. There, she raced to the fourth floor, sneakers pounding against the floor as she beelined for the cardiology unit. By that point, Andy had regained consciousness and could sometimes nod yes or no, but he easily became agitated, according to his children. Andy’s medical record from that day described him as “non-verbal.”

Megan went to her father’s room first “to let him know that he wasn’t alone” and then to the nurse’s station, where two physicians met her. She said they told her that her father had a fever when he arrived for his checkup, so they kept him overnight and started a course of antibiotics. The hospital suspected pneumonia, according to his medical record.

Nobody at the hospital had called Megan, Chris or anyone else in the family to let them know that Andy was being admitted or treated, his children said. A few days later, a handwritten note in Andy’s medical record said that the family was “upset” that they weren’t informed.

Megan said she turned to a nurse to ask, “What’s his code status?”

“Oh don’t worry, he is at full code,” the nurse responded, meaning that if Andy stopped breathing or his heart stopped, they would do everything possible to resuscitate him.

Her words riveted Megan to the floor.

“I said, ‘Oh, no, that is the complete opposite of what we want.’”

Newark Beth Israel didn’t respond to questions about this incident.

Andy needed to stay in the hospital until his infection cleared. That Friday, Megan refused to leave the hospital until she got a DNR order, so a cardiologist signed one. “Extensive discussion with daughter — Patient is DNR,” a note in the medical record states. The family scheduled a formal meeting to discuss the order on the following Monday with a palliative care nurse practitioner and Zucker, the transplant program’s director.

Chris was out of town, so Megan and her aunt, Anna DeMarinis, attended the meeting. Megan reminded Zucker that her father’s goals for the transplant had been to resume his normal life, she said. She reiterated that the family wasn’t asking to withdraw his feeding tube or medications. They just didn’t want Andy to endure what they saw as extraordinary measures.

As Camacho had, Zucker urged caution. “He looked at me and said: ‘You know, this is a very serious document. It’s very extreme. Are you sure you want to do this?’” Megan recalled.

She wondered if Zucker was appealing to her emotions. “I got the impression he thought I was going to be the one who was going to say, ‘No, I don’t want to lose my Dad, let’s keep trying!’”

Megan wasn’t swayed. “I could see what was actually happening, which is — he was suffering and that’s the only thing I saw.” The palliative care nurse practitioner at the meeting revised and signed Andy’s POLST form, indicating that Andy would continue full medical treatment unless he stopped breathing or had no pulse. In the CPR section, she checked the box for “Do not attempt resuscitation.”

Even then, Zucker wouldn’t let it go. After returning from his trip, Chris was sitting by his father’s bedside when Zucker came by. Unprompted, Zucker brought up the DNR.

“He said, ‘So, you’re giving up on him.’” Chris recalled.

Chris didn’t respond. “I was shocked, for a doctor to throw that in my face,” he said.

Newark Beth Israel and Zucker did not respond to questions about the meeting with Megan or Zucker’s conversation with Chris. “Mr. Jurtschenko’s medical record confirms that his family’s decision to implement a DNR in June rather than in April did not change his outcome,” Kamateh said.

Andy Jurtschenko eventually returned to JFK Johnson. Over the next few months, during which he was moved to a different long-term care facility, Andy’s condition improved modestly, until he was able to track people with his eyes and have short conversations.

But his gains soon plateaued. He was never able to stand, sit or eat on his own. He started hallucinating, seeing people who weren’t there. Over time, his hands began to atrophy and curl in on themselves, despite attempts at physical therapy.

Andy’s family members took turns visiting, making sure he had company nearly every day. Sitting by his side, they tried to engage him by flipping through photo albums, playing music from his favorite band, AC/DC, and watching sports on TV. They ached to see his misery. The spark in her younger brother’s eyes was gone, DeMarinis said. Holding back tears, she said, “When he did become cogent, he just kept reiterating what we already knew — he was suffering. He was suffering terribly.”

On the morning of Oct. 31, 2018, the rehab facility phoned Chris. Andy had died at sunrise. When his heart stopped, and his breathing faded, there was no attempt to resuscitate him.

Claire Perlman and Sophie Chou contributed research and analysis to this article.

Full Article & Source:
The Family Wanted a Do Not Resuscitate Order. The Doctors Didn’t.

Appellate court awards lawyer fees

By Bruce A. Scruton

NEWTON — The Appellate Division of Superior Court has decided in favor of current Sussex County Counsel Kevin Kelly, ordering the county pay him nearly $43,500 in fees from when he represented a possibly incompetent person before he became county counsel.

The case originated in the Surrogate’s Court which has jurisdiction over actions and proceedings involving, among other things, the probate of wills, affairs of decedents, and the guardianship of the property of underage or incapacitated persons.

The unanimous decision of the three-judge panel could set a precedent in the state on how, and how much, appointed attorneys are paid for their services and to what extent they can go in representing those people.

The case began in March 2015 when Hamburg police were called to investigate the well-being of an 85-year-old woman who was still living in her home, but with her son as a caretaker. The decision said the woman’s husband had moved out of the house and was living with a daughter.

The local police referred the woman to Adult Protective Services, a unit within the county’s then-Division of Social Services. The decision notes that the son “actively opposed” the police investigation and went so far as to file a lawsuit against the police, the county division, a social worker and a caseworker. That case was summarily dismissed in December 2017.

In early 2016, the office of then-county counsel John Williams, acting on behalf of the division and APS, filed a complaint seeking to declare the woman incapacitated and to appoint a guardian as prescribed by law.

Kelly’s law firm, Kelly and Ward, was appointed as the woman’s counsel and later in the year another attorney, Megan MacMullin, was appointed as temporary guardian, superseding the woman’s son. In August the elderly woman was adjudged incapacitated and her daughter was appointed as the guardian.

With the guardianship completed, Kelly filed an application with the county to be paid for his counsel fees which was opposed by Williams.

In June 2018, the trial court granted Kelly’s application and entered that order in the record.

Speaking in general terms, Sussex County Surrogate Gary Chiusano said many cases require guardians to be appointed, whether it is for incapacitated adults or minors.

In the case of the Hamburg woman, Chiusano said she was living in poor conditions and the son was fighting against every step taken to get her the help she needed.

In most cases, fees for the guardians are paid by the estate of the person getting the help. In some cases, a hospital or nursing home picks up the costs and in rare cases, the county pays.

Chiusano noted that it’s not just legal guardians who get involved, but medical experts and health care facilities also charge for their services. He said that some charges are normal and “substantial discounts” are often given as well.

Chiusano emphasized the unusual circumstances of this case.

In his 2018 ruling, Judge Robert Brennan noted “the matter was highly contentious and that (the son) endangered his mother’s welfare.”

The trial judge found that the mother was found to “have fungus under her breasts, dead bug bites, and extremely poor hygiene.”

The son continually interfered with his mother being seen by her treating physician “who had not evaluated (mother) for approximately two years.”

The son also kept exterminators away from his mother’s residence as well as keeping his siblings and others from seeing his mother. In most of those cases, Kelly, as the woman’s legal counsel, had to step in.

The appellate judges also noted a dozen applications were filed by the son “for the most part frivolous, requiring responses from Kelly.”

The opinion noted that “without the steps taken by Kelly to meet (interference from the son), Kelly’s client would have suffered even more than she did.”

Quoting directly from the trial judges’ statement, the appeals court’s judges wrote “it is not equitable on the one hand for APS (Adult Protective Services) not to carry out all of its statutory duties, leave them to Kelly, and then object to payments to Kelly for his fees when APS took no action, and then being critical of Kelly having done that” and all because it was “essential to (mother’s) welfare that Kelly take action in that regard.”

The appellate judges noted “the trial judge emphasized the exceptional efforts expended by Kelly” because of the son’s impediment to the care for his mother.

The trial judge, they also said, on his own motion ordered the son to show cause why he, the son, shouldn’t be ordered to pay counsel fees and costs of any party opposing any action filed by him in the future.

The trial judge eventually ordered the surrogate to accept the son’s motions, but not to file them.

The appellate judges also took APS to task for prolonging the litigation by not supplying the financial analysis and investigation required by law. “Had APS done so, it would have been readily apparent from the onset of the proceedings that (mother) did not have the funds or ability to pay for professional services. Instead, the temporary guardian (MacMullin) and court-appointed counsel (Kelly) had to perform these tasks, which should have been done at APS’s expense.”

MacMullin was paid for her time as temporary guardian.

In their final statement about the merits of the case, the judges wrote: “The remaining issues raised by appellant do not have sufficient merit to warrant discussion in a written opinion.”

Megan A. Ward handled the appellate case for the law firm.

Kelly said that because of his position as county counsel — he was appointed for a three-year term in July 2018 — he would not comment on the matter.

Gregory J. Castano Jr., who wrote the brief on behalf of the county, was not available for comment.

Full Article & Source:
Appellate court awards lawyer fees

Montana woman who embezzled funds from nursing home resident ordered to do time, pay restitution

A nursing home business manager in Montana helped to alert authorities to a Miles City woman who was embezzling funds from a resident and since has been ordered to pay more than $94,000 in restitution to her victim’s estate, the Montana Department of Justice said.

Del Linda Frost, 60, pleaded guilty to exploitation of Arthur Yamada in Custer County. At a hearing in December, Judge Michael Hayworth ordered Frost to pay restitution and sentenced her to 10 years in Montana State Prison.

Frost was appointed temporary full conservator of Yamada in 2014 and later became his permanent co-conservator. In 2017, the business manager of the nursing home where Yamada lived informed Miles City police that an $8,400 check from Yamada written by Frost had bounced. Frost wrote several more checks, which emptied the account and left Yamada unable to pay for his care, according to a Montana Department of Justice media release. She also closed two certificates of deposit. Frost was unable to explain why nearly $94,000 was missing and resigned as Yamada’s co-conservator in 2018. Yamada died that year at age 97.

“This case was especially troublesome, given that the defendant worked in a law office and should have had the best interests of Mr. Yamada in mind when she was appointed as his conservator,” Attorney General Tim Fox said in the release. “Instead of acting conscientiously, Ms. Frost viewed Mr. Yamada as a tempting target and began embezzling his life savings almost immediately. Financial exploitation of seniors is a serious crime; one we must all guard against. I commend the nursing home business manager who alerted authorities when she suspected something was wrong, as well as my Division of Criminal Investigation’s Medicaid Fraud Control Unit and the Custer County Attorney’s Office for their diligent work on this case,” Fox added.

Full Article & Source:
Montana woman who embezzled funds from nursing home resident ordered to do time, pay restitution

Thursday, January 2, 2020

Son pleads with father in Macomb County court to account for trust-fund spending

Fred Smith, Sr.
By Jameson Cook

Fred Smith’s son traveled from out of state to Macomb County to plead with his father to comply with a judge’s order to account for millions of dollars in his mother’s trust fund.

The son, Fred Smith Jr., told his father at a Dec. 16 Macomb County Probate Court hearing, “Sure, you made savvy business decisions on the front end of this to generate the trust, the value of the trust. And there was poor decisions made. You have to provide an accounting.

“It’s tearing mom apart. I hate to leave you in jail.”

Smith Jr., choking back tears, told Judge Sandra Harrison: “This whole matter has just torn up our family. We just need to move forward in this case.”

Fred Smith Sr., 73, remains incarcerated over the holidays after he was jailed Oct. 17 for failing to provide a credible accounting of roughly $6 million of his mother’s money. He was the trustee for a decade ending in 2015.

The case is under investigation by the Macomb County Sheriff’s Office.

Smith Jr., a captain in the Navy, told Judge Sandra Harrison he will pay for an accountant to help his father provide bank and other records of how the money was spent.

Smith Sr.’s elderly mother, Shelby Steves Smith, previously told her son in court she loves him and told the judge at the Dec. 16 hearing from her wheelchair: “I’ll do what I need to do to clear this up, but it seems to me a lot of things have been done that should not have been done, and I don’t know how to handle that.”

Shelby Smith resides in a Romeo nursing home while she waits for her Washington Township home to be renovated to be wheelchair accessible.

Harrison at the hearing decided to keep Smith Sr. jailed until at least a Jan. 3 hearing and granted a petition by his mother’s guardian and conservator, George Heitmanis, to surcharge him $4.7 million, the minimum amount of money for which Smith Sr. that officials say has failed to account. She also awarded what is known as “treble” damages that triples the amount to more than $14 million.

Judge Sandra Harrison of Macomb County Probate Court
Harrison said she had been leaning toward releasing him but was displeased that Smith appeared to lie to her at a Nov. 25 hearing when he said he had only one storage unit at two separate storage facilities. Officials learned he or a family member was renting four additional units at one of the facilities.

“Because you perjured yourself the last time we were here and you continue to attempt to hide (assets) and because you have made no progress on filing this accounting, I am going to keep you in jail,” Harrison said from the bench.

Smith Sr. responded: “It’s virtually impossible for me to complete the fudiciary reports while incarcerated.”

He complained he has very limited resources at the jail and must write with stubby pencils.

Smith Sr., a Vietnam veteran, has denied wrongful spending, noting he has his own income to spend, $7,000 per month in Navy retirement, military disability and Social Security; the Social Security is currently suspended while he is in jail.

He has accused Heitmanis of making “vicious attacks on my character and credibility.”

He said he would like transcripts to court hearings so he can refute, “line by line,” the “falsehoods” and “inaccuracies” by Heitmanis, who took over as guardian more than two years ago from attorney Terry Gilsenan.

Full Article & Source: 
Son pleads with father in Macomb County court to account for trust-fund spending 

See Also:
Man jailed by Macomb judge for failing to disclose trust-fund spending, denies wrongdoing