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Nursing Home Industry Wants to Limit Patients’ Access to Court, While They Abuse It

Nursing Home Industry Wants to Limit Patients’ Access to Court, While They Abuse It

by Michael Quinn

There has been much discussion of how President Trump’s recently proposed budget breaks his campaign promise to not cut Medicare, and would ultimately harm seniors. It is worth noting that this is part of a pattern of his administration acting against the interests of the elderly, often to benefit of industry groups. Before proposing billions of dollars in cuts to health insurance for those over 65, Trump’s administration scaled back the use of fines against nursing homes that harm residents or put them at risk of injury. It has also rolled back Obama-era protections preventing the nursing home industry’s use of forced arbitration clauses. These clauses deny patients their day in court, although nursing homes are all too willing to use—and abuse—the courts for themselves.

This was the case when the deep-pocketed elder care facility Los Angeles Jewish Home for the Aging (LAJHA) filed a malicious and frivolous defamation lawsuit in 2010 against 86-year-old resident Evelyn’s daughter Val West and friend David for an email sent to their own attorney detailing elder abuse perpetrated by LAJHA. This one email set off over seven years of litigation, forcing Val and David to pay extensive attorney fees. The abuse detailed in the email was only one event in a long series of abuses that began almost immediately after Evelyn moved into LAJHA’s residential care facility in early 2008.

The first sign of trouble was the disappearance of some of Evelyn’s medications which were held and administered by LAJHA. Val later learned that contrary to her mother’s instructions, LAJHA enrolled Evelyn in a Medicare program without disclosing her private insurance benefits, potentially committing fraud. Val also received calls from medical vendors that her mother’s personal information was being used to order medical services for other patients. Things only got worse after Val and Evelyn inquired about being billed for a higher rent than agreed upon. Shortly after that inquiry, an LAJHA staff member confronted Evelyn in the dining hall in front of other residents with a stack of documents. Despite Evelyn’s requests—made both before and after moving in—that Val or David be present for any discussion involving legal matters, the staffer demanded that she sign the documents before allowing Evelyn, a diabetic, to eat. Faced with falling blood sugar levels and intimidation, Evelyn signed the documents without reading them or knowing their contents. After months, Val learned that they were a new resident admission agreement, with the rent amount left blank again, had reversed Evelyn’s original denial of authorization for LAJHA to take funds from her trust account and open her mail, including drug deliveries.  LAJHA also redirected Evelyn’s Social Security deposits to LAJHA’s own bank account. After repeated meetings with LAJHA administrators failed to remedy these problems, Val, Evelyn, and David met with an attorney at Bet Tzedek Legal Services, and at her suggestion reported LAJHA to the state ombudsman.

The ombudsman admonished LAJHA for not specifying an exact rent amount in Evelyn’s new admission agreement as required by state law, and LAJHA’s administration promised to correct this (but never did). Problems with Evelyn’s medication persisted, and services she did not need or request continued to be billed to her insurance falsely using her identity, risking the loss of her retired teacher benefits, so Val and David assisted her in reporting LAJHA to several oversight authorities. An administrator with LAJHA threatened Val that if they did not cease filing reports with authorities, he would throw her mother “out on the hot sidewalk … in three days.” Soon after this threat, on January 10, 2010, Evelyn displayed flu-like symptoms and elevated glucose. LAJHA staff refused to page her endocrinologist, per his written instructions, instead bringing in an LAJHA-affiliated doctor. Val eventually contacted the endocrinologist herself, and assisted her mother to the emergency room by ambulance, following which she was admitted to the hospital. Val reported this incident to the Department of Social Services (DSS), which resulted in several acts of retaliation.

Just five days after Evelyn’s illness, on January 15, LAJHA instructed their attorneys to prepare a civil complaint against Val and David. While their lawyers searched to find some cause to sue, LAJHA struck out at Evelyn, Val, and David personally. They filed a groundless complaint against David, an attorney, with the State Bar. The State Bar found no basis for action against David. Subsequently, LAJHA served Evelyn with a three-day eviction notice for non-payment, which was untrue, as the check had already cleared both banks. DSS cited LAJHA for illegally serving Evelyn an eviction notice. When Evelyn, Val and David delivered a physician insulin change prescription, an LAJHA administrator burst into the room where Val and David were speaking with the director of nursing, falsely accused them of “trespassing,” and called the police.

On February 3, LAJHA refused to relay Evelyn’s own blood sugar test results to Evelyn or Val. Evelyn and Val wanted to know if Evelyn needed to go to ER again. After an LAJHA nurse said, “They told me not to give you anything,” David sent a four-sentence email to LAJHA administrators detailing the withholding of medical information and the nurse’s reply copying the attorney they had met with at Bet Tzedek. This email, simply because it was copied to their attorney, became the basis for a defamation claim against Val and David resulting in over seven years of litigation. This was despite the fact that LAJHA knew the statements in the email were true, and indeed had been confirmed by DSS, who cited LAJHA for withholding medical information.

Truth is the ultimate defense against a defamation claim. LAJHA knew that the claims in the email were true, and should have known that their defamation claim was filed without probable cause. Indeed, as mentioned above, LAJHA had instructed their attorneys to sue weeks before the email was sent. Thankfully, the court ruled that the defamation action was frivolous and violated California’s anti-SLAPP law, which is designed to quickly terminate invalid and abusive lawsuits, on the grounds that such suits are designed to intimidate and burden defendants with costs, thereby impeding freedom of speech. However, the case is still ongoing as Val and David attempt to recover under a malicious prosecution action.

This case reveals the hypocrisy at the core of the nursing home industry’s push for forced arbitration: they want it both ways. They want to bar their residents and their families and advocates from the courts, but do not hesitate to use the court system themselves. As the LAJHA suit shows, industry use of the courts can be intentionally frivolous and malicious, designed to use their large financial resources to intimidate and burden their residents with legal costs. Yet the Trump administration’s Centers for Medicare and Medicaid Services rescinded a proposed prohibition on pre-dispute binding arbitration agreements, in order to “reduce unnecessary provider burden.” When the providers are the ones filing suits, they don’t seem to think access to the courts is a burden.