Nursing home sued after video shows staff taunting elderly woman

GLENVIEW, Ill. — An Illinois nursing home was sued after caregivers allegedly posted Snapchat videos of themselves taunting a dementia patient.

The short Snapchat video shows 91-year-old Margaret Collins who has dementia. In the video, it said “Margaret hates gowns!” with two laughing and crying emojis. It showed a certified nursing assistant repeatedly putting a hospital gown on top of an elderly woman while she tries to wave it away.

"You just can’t believe you’re seeing this," Joan Biebel, Collins' daughter, said. "You think your mom is safe and now this is going on. You’re just trying to figure out what the heck is happening here."

The incident happened last December at the Abington of Glenview nursing and rehab center. Family members said staff knew that Collins did not like hospital gowns and preferred to wear her own clothes.

Brayan Cortez and Jamie Montesa were both charged with misdemeanor disorderly conduct. Police said Cortez was in the video and Montesa recorded it and they said she told investigators she had recorded video of Collins in her wheelchair once before.

"If they’re in her room, they should’ve been there for a reason to help her, assist her, not to exploit her and threaten her and demean her and post it on social media," Biebel said.

Now, the family is suing the nursing home, its parent company and the workers. The lawsuit seeks more than a million dollar in damages.

Administrators said in a statement:

“The privacy and dignity of our residents are of the utmost concern at The Abington. Recently,  two employees were immediately terminated when it was determined that they violated our standards and policies.”

Police reports said Cortez and Montesa did initially return to work after serving a six-day suspension. The Illinois Department of Public Health reported administrators initially concluded the allegations were unfounded after co-workers vouched for the pair.

"This was a sick game that two CNAs tried to play for their own enjoyment and by filing this lawsuit and pursuing this lawsuit we will prevent this from happening to other individuals in this facility, as well as other facilities across the state," John Perconti, attorney, said.

The state found Abington failed to implement its abuse prevention policy. Family members moved Collins to another facility, but they say her health has deteriorated.

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Nursing home sued after video shows staff taunting elderly woman

Michigan nursing home sued for imprisoning and ransoming woman

By Gretchen Rachel Hammond 

Mimi Brun and her mother, Virginia Wahab

A number of studies have found that the greatest fear expressed by senior citizens, a demographic that’s exponentially growing in number in this country, is not death but the eradication of their independence if they are forced to live in a nursing facility. According to a lawsuit filed on May 8, that fear became reality for a vital and healthy Detroit-area woman, Virginia “Jean” Wahab, who spent two years falsely imprisoned in a Waterford, Michigan, nursing home owned by Lourdes, Inc., and sponsored by the Dominican Sisters of Peace religious order. The home demanded payment of what amounted to a ransom of $25,000 to release Wahab from the facility.

“Mom was a fearless, independent woman before Lourdes took control of her,” Wahab’s daughter and caregiver Mimi Brun said. “When I finally got her out of there, it took me a long time to wean her off all the unnecessary anti-psychotic and anti-depressive drugs they had been giving her.”

Brun is the plaintiff in the lawsuit, which claims her mother was subject to false imprisonment, negligence, breach of contract, malicious prosecution, abuse of court process, and the intentional infliction of emotional distress. Filed in the Oakland County Circuit Court, the complaint is a first for Michigan and comes on the heels of Attorney General Dana Nessel’s creation of an Elder Abuse Task Force.

Brun said that although her mother had been living alone before her ordeal began in 2016, by the time she was able to secure Wahab’s release after a protracted legal battle, “She couldn’t stand up. She was terrified of being locked in a room and of someone coming to take her back to Lourdes.”

Before Wahab passed away at the end of April, mother and daughter were finally able to spend a precious few months together after having been kept apart by a court order obtained by Lourdes that severed Brun’s visitation rights.

Short-term rehab to long-term guardianship

According to the complaint, the family’s problems began in February 2016, when Wahab was admitted to Lourdes Senior Community, a $21 million nonprofit organization housing 250 residents at four facilities, for short-term rehabilitation following a recommendation from her doctor. By April 2016, Wahab’s insurance company, Health Alliance Plan, had terminated Wahab’s Medicare benefits at Lourdes, stating that she needed no further services or medication and was “medically stable for discharge.”

However, the complaint asserts, “Even though Virginia did not need to be in a nursing home, Lourdes kept her in a section reserved for terminally ill and dementia patients for over two years [and] would not release Virginia without the payment of a bill in the amount of $25,000.”

Court documents show that Lourdes filed a June 6, 2016, petition for guardianship of Wahab with the Oakland County Probate Court. During a June 29, 2016, hearing on the petition, Lourdes social worker Sara Van Acker stated that the organization was seeking guardianship of Wahab because of “a concern about the nursing home being paid.”

Without any medical documents regarding Wahab’s alleged incapacity presented at the hearing, presiding Oakland County Probate Court Judge Linda S. Hallmark granted the request and appointed former Oakland County Public Administrator Jon B. Munger as Wahab’s guardian.

Guardianship under scrutiny

Guardianship is a system that has come under scrutiny. Under guardianship, an individual deemed legally incompetent by a probate or family court judge must cede their personal rights, freedoms, financial powers, and medical decisions, often to a total stranger. Cases in which court-appointed professional guardians have used their power to exploit and abuse their elderly or vulnerable wards have been uncovered nationwide. A 2015 Hunter College/New York Times study determined that the use of guardianship as a collection agency by nursing facilities has “become routine.”

Despite a statute in Michigan’s Estates and Protected Individuals Code (EPIC) giving Brun priority over a professional guardian in the care of her mother, Judge Hallmark stated that she was appointing Munger “to make sure we have the Medicaid application on track [and] get this bill taken care of.”
According to Brun’s lawsuit, Wahab was “kept in Lourdes against her will in exchange for the Medicaid payments [and] as collateral for payments it claimed were owed to it by Ms. Brun.”

The fight to be reunited

During the two-year fight Brun waged to have Wahab released from both the guardianship and the nursing home, the complaint alleges, Lourdes denied Brun visitation rights and barred her from the premises; chemically restrained Wahab while denying her personal liberty and freedom of movement; and obtained an illegal injunction from Hallmark and a bench warrant for Brun’s arrest unless she paid them $25,000.

The complaint notes a Feb. 2, 2017, email from Lourdes attorney Mary Lyneis telling Brun, “We want to be paid. You cannot expect to show up to see your mother when you have not paid for the privilege.”

A disturbing June 27, 2018, video shows a brief reunion between mother and daughter outside the Oakland County Probate Court before Munger’s attorney Joseph Ehrlich pulls Wahab’s wheelchair away with such force that Wahab is jolted back in her seat. Brun said her reaction was visceral and born out of exhaustion, frustration, and helplessness. “I hadn’t seen my mother for two years,” she recalled. “They had no right to separate us. What Ehrlich did was aggressive and illegal. If it was your mom, what would you do?”

Ultimately, Brun decided the answer was to take legal action against Lourdes and to seek justice—but not only for Wahab. “The irreparable suffering in my mom’s case, the inhumanity she was subjected to, the illegalities and the breaches of her legal and human rights cannot be repeated to anyone else anywhere,” she said.

Respecting rights

Passed in 1987, the federal Nursing Home Reform Act is supposed to require facilities to ensure the rights and protection of residents. Representing Brun in the case, Michigan trial attorney Mark Hafeli noted that the nursing home’s alleged actions were in violation of those rights. “All federal regulations and resident rights say that a resident of a nursing home has a right to visits. You can’t condition a mother’s right to see her daughter based upon the daughter’s payment of $25,000. To be locked in a nursing home when you don’t want to be there is a serious wrong,” Hafeli said.

Even though the act stipulates that in cases where a resident has been deemed incompetent by a state judge, their rights are transferred to a guardian, Hafeli does not believe it lets Lourdes off the hook for filing an unwarranted petition in the first place and holding, isolating, and treating Wahab in a negligent manner. “According to an expert I have consulted, regardless of what the guardian may or may not do, the nursing home has a duty to discharge a person when they don’t need skilled nursing care,” he said, “especially when there’s a family member willing to take care of them.”

Diane Menio is the executive director of the Center for Advocacy for the Rights and Interests of the Elderly, which promotes “the wellbeing, rights and autonomy of older adults.”  Menio said, “There are national trends such as nursing homes going for a guardianship when they can’t get payment or an application for Medicaid. But you can’t keep someone hostage until money is paid. A family member being told ‘you can’t visit because you owe us money’ is something new to me.”

Menio noted that her organization has lately seen nursing facilities applying for guardianship of their residents “in batches.” Such activity raises the question of whether a reason for the increase in guardianship and nursing home abuse is an increasing senior demographic that, both politically and culturally, the United States would prefer to ignore. “Society doesn’t see elderly people,” Menio agreed. “The abuse of them is underreported. People take advantage of them. Making sure we have protections in place for the elderly population is extremely challenging.”

Brun said that her lawsuit is part of a greater elder-abuse awareness campaign she calls #justiceforjean. “People need to wake up about the potential for destructive forces in the lives of people they love,” she said.

Reached by email, Debi Batchelder, assistant to Lourdes Senior Community CEO Sister Maureen Comer, said the organization had no comment on the lawsuit or the allegations.

Gretchen Rachel Hammond is an award-winning journalist whose body of investigative work has focused on social injustice and marginalized communities. She has just completed a year-long investigation into a massive, alleged elder abuse and exploitation ring operating out of a Detroit-area probate court, which will be published soon.

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Michigan nursing home sued for imprisoning and ransoming woman

Connecticut Guardian Sued by Nursing Home for Failure to Timely File Medicaid Application

In his Elder Law column, Daniel G. Fish discusses a decision of a Connecticut appellate court, 'Bloomfield Health Care Center of Connecticut v. Jason Doyon', which should serve as notice to guardians to pay close attention to the status of potential Medicaid eligibility of wards and to seek advice from a source that has extensive experience with the intricate requirements of Medicaid eligibility

Photo courtesy of kenary820/Shutterstock

A decision of a Connecticut appellate court, Bloomfield Health Care Center of Connecticut v. Jason Doyon (Conn. App. Ct., No. AC 40281, Oct. 9, 2018) should serve as a cautionary tale for guardians. In that case, a nursing home brought suit, outside of the guardianship court, against a guardian for failure to timely file a Medicaid application. The lower court dismissed the action for lack of privity but the appellate court reversed and remanded.

 ‘Bloomfield’

Samuel Johnson was admitted to the Bloomfield Nursing Home in April 2013. In September of that year his daughter filed a Medicaid application on his behalf. Medicaid denied that application in January 2014 for failure to provide information, such as an explanation of the proceeds of the sale of Johnson’s home.

The nursing home then initiated a conservatorship proceeding to assist Johnson in filing for Medicaid so that it could be paid. Jason Doyon was appointed conservator in April 2014. He paid over the proceeds of the sale of the home and Johnson’s monthly Social Security benefits to the nursing home. He did not file a Medicaid application until January 2015. This application was denied for failure to submit required documentation of eligibility.

The guardian then filed a further Medicaid application in August 2015 which was approved. However, the retroactive date that Medicaid eligibility began, May 1, 2015, left a gap in coverage and a debt owed to the nursing home. The nursing home brought suit directly against the guardian, in a plenary action, alleging his failure to timely file the Medicaid application was negligent and harmed the nursing home.

The guardian filed a motion for summary judgment arguing that he owed a duty only to his ward and had no duty of care to the nursing home. The trial court granted his motion. holding that “the defendant’s duty, and in fact, his authority to pursue Medicaid benefits on behalf of his ward, does not arise out of any relationship between the plaintiff and him, but solely from his appointment by the Probate Court as conservator …”

The appellate court reversed, finding the nursing home had advanced sufficient facts to demonstrate the foreseeability of harm to the nursing home if the Medicaid application were not filed timely by the guardian. The Bloomfield court gave great weight to the fact that the initial nursing home petition for the appointment of a conservator specifically mentioned the need for the Medicaid application; the guardian had exclusive access and control over the patient’s assets; the guardian had paid the proceeds of the sale of the home to the nursing home and paid the ward’s monthly Social Security benefits to the nursing home and knew of the debt to that facility. In this case the guardian was directly involved in the financial relationship between the ward and the nursing home.

New York State

In New York state, suits brought against guardians by third parties in plenary actions have been few in number and have been unsuccessful.

In Columbia Memorial Hospital v. Barley, 790 N.Y.S.2d 576 (App. Div. 3d Dept., 2005), the plaintiff hospital sued the patient’s guardian, the Columbia County Department of Social Services (DSS), alleging that the guardian failed to prevent the fraudulent transfer of the patient’s home or seek to have it set aside. DSS moved for summary judgment in the trial court and that motion was denied. The Appellate Division reversed and granted summary judgment to the guardian finding that “Plaintiff’s claim against DSS for breach of fiduciary duty should have been dismissed, however, because plaintiff neither pleaded nor proved facts demonstrating that DSS owed a fiduciary duty to plaintiff or had any relationship approaching privity …”

Martin v. Ability Beyond Disability, 2014 N.Y. Misc. LEXIS 5094 (Sup. Ct. Westchester Cty., 2014) reached a similar conclusion. This was a suit by mother of a deceased ward (John Martin II) against the guardian (Philip E. Conaty) for loss of the right of sepulcher. She alleged the guardian failed to notify her of her son’s death. The guardian argued lack of privity. The court agreed with the guardian: “The plaintiffs do not have standing to bring an action against Conaty. First the Court notes that Conaty owes no duty to the plaintiff other than in his capacity as a guardian for John.”

Complexity of the Medicaid Application

Bloomfield can be taken as a warning to guardians in New York to be timely in the filing of Medicaid applications on behalf of their wards. The fact that it took three applications to secure a Medicaid approval in Bloomfield can be taken as an indication of the complexity of a Medicaid nursing home application.

That application requires complete monthly statements from all financial investment and income tax returns over a five-year period immediately preceding the filing of the application. Those records must be analyzed to determine whether any uncompensated transfers were made within that time period by reviewing all withdrawals of $2,000 or more. In addition, the application must explain all of the income received during the five-year period, such as Social Security, pension, annuities, interest and dividends and required minimum distributions from retirement accounts. Further the application must document factors of age, citizenship, marital status, health insurance, and residence.

Obtaining all of the required information for a third party who is a resident of a nursing home and may be unable to assist in the process due to dementia can be an arduous process. The guardian should be aware of the information that will be required by Medicaid and ensure that the commission authorizes the guardian to secure the necessary information (e.g., birth certificates, marriage certificates, divorce decrees, death certificates and tax information).

The guardian should have the skill to timely file the Medicaid application and if not seek court approval for the retention of an appropriate professional with the experience and capability of properly filing the application and monitoring the processing of the application by the Medicaid agency.

Conclusion

Even though the nursing home in Bloomfield brought the original guardianship petition, it brought a separate proceeding against the guardian for the delay in the filing of the application. The nursing home might have avoided the privity issue if it had brought the proceeding for the delay in the guardianship court where the matter originated. The matter is made more difficult in New York state, where some nursing homes have brought guardianship petitions to secure payment for care and been criticized for using Article 81 of the Mental Hygiene Law for debt collection purposes. “To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate.” Matter of G.S., 841 N.Y.S.2d 428, Sup. Ct. Bronx Cty., 2007).

This case should serve as notice to guardians to pay close attention to the status of potential Medicaid eligibility of wards and to seek advice from a source that has extensive experience with the intricate requirements of Medicaid eligibility. A Medicaid application is a daunting task for the first-time filer, and trying to master it without sufficient experience in the document requirements, deadlines, fair hearing and litigation options can expose a guardian to liability. The Bloomfield decision was not on the merits and only found that summary judgment was not appropriate in this case. The case is very fact specific, but the risk that a guardian could be liable to a third party for failure to properly process a Medicaid application for a ward is a genuine concern.

Daniel G. Fish is a partner at McLaughlin & Stern.
 
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Connecticut Guardian Sued by Nursing Home for Failure to Timely File Medicaid Application