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Law Firm Plans Entry Into Mississippi Nursing Home Litigation
Law Firm Plans Entry Into Mississippi Nursing Home Litigation
08/14/2000
Mississippi Business Journal
By: Elizabeth Kirkland

There are 195 certified nursing home facilities in Mississippi to date and every year when the State Department of Health (MSDH) visits them to make sure they are following rules and regulations, there are certain rules and regulations that they find have been broken.

Wilkes & McHugh, P.A., Attorneys at Law, is trying to get things changed in Mississippi, though. Already the law firm has offices in Texas, Alabama, Arkansas and Florida and does work in Georgia. And although they have not yet opened their firm in Mississippi, they already have at least 40 cases in the state.

“We were getting a number of calls from people in Mississippi who wanted to be represented,” explained Steve Vancore, director of government affairs at Wilkes & McHugh. “It's very sad.”

Jim Wilkes, who founded Wilkes & McHugh with his partner and best friend, Tim McHugh, in 1984, is no stranger to controversy. Since he and McHugh founded the firm, they have had landmark verdicts in the area of nursing home abuse and are widely regarded as pioneers in the field. Lawyers at one time had been hesitant to represent victims of abuse because they were seen as having little or no economic “value” in society, but Wilkes helped to change that.

In Mississippi, Wilkes sees the entire gamut of nursing home abuse, from custodial neglect that leads to bedsores, dehydration, malnutrition, physical trauma and hygiene infections, to verbal abuse.

“You cannot warehouse the elderly effectively,” Wilkes said. “We're trying to have these people live in prison-like settings. Our whole system of long-term care has got to be changed, but the companies involved in it continue to support it.

“We need a lot more adult family homes.”

Anniece McLemore, the state long-term care ombudsman, investigates and attempts to solve complaints or concerns of nursing home residents and their families and has, like Wilkes, seen a wide range of abuse in nursing homes. The number one complaint she has fielded is their shortage of staff.

“We have heard (of people falsifying their number of staff),” she said. “We have heard of people having staff (come in) temporarily in order to meet the regulatory standards.”

Another complaint McLemore hears a lot is that the nursing staff is unresponsive to the call light.

“They're (nursing staff) supposed to respond right away because you never know what exactly a resident may be calling for. If you delay, it could be something life threatening. Or it could be something as simple as wanting a glass of water.”

McLemore recently visited a nursing home in the Delta and, while visiting a resident's room, she and another ombudsman pressed the call button so the light would come on.

“We waited 15 minutes and no one ever came and finally we went down to the stations where the CNA's and the nurses were,” she said. “They were turned into the State Department of Health.”

But, McLemore said, “We have had complaints about people waiting even longer than that.”

Another problem McLemore has found, according to information the state long-term ombudsman program has found, is that nursing home staff may know, in advance, when personnel from the MSDH will be making their annual visit.

“We do believe that it happens and we don't know how,” McLemore said. “The State Department of Health has really tried to resolve that issue.”

McLemore's suggested approach to improve the nursing home industry is more conservative than Wilkes — is.

“First of all, the utmost important thing is more staff. And not only more staff, but staff with adequate training. I think that's really, really an important factor.

“One of the things that we know as ombudsmen is that the kind of care that's provided in a nursing home is directly related to the outcome. I think when you have overworked staff members, some tend to become rude and hurried. Another major problem with nursing homes is malnutrition and sometimes dehydration (in residents), and that's linked, again, directly to the shortage of staff.”

Although McLemore cannot recommend a nursing home to people who call her because of the way the ombudsman program was designed, she can offer advice to people of what they should look for in choosing care for their loved ones.

But while McLemore believes long-term care in Mississippi simply needs work, Wilkes believes 60 to 100 residents cannot be effectively cared for in the environment of a nursing home.

Vancore agreed with Wilkes.

“The concept of nursing homes is a failed concept,” he said. “There is not one shred of evidence that shows the nursing home concept works.”

Paul Lang, branch manager of the Mississippi State Department of Health Licensure and Certification office in Jackson, acknowledged the lack of staff the nursing home industry has.

“You don't have as many people to take care of the people as you have in hospitals,” Lang said. “A lot of the nursing homes have problems getting staff.”

But, he continued, “Generally speaking, I think we have good nursing homes across the state.”

That does not mean there are no complaints to MSDH about nursing homes, though. According to Lang, the MSDH receives in the neighborhood of 200 to 300 complaints about nursing homes each year.

“(The MSDH) can't validate many of those, but if we can find documentation, we issue citations for regulation abuse. Under the program for other remedies, we can impose dollar fines and those types of things.”

Lang said most of the abuse and neglect cases have centered on a nurse aide. A registry, called the Nurse Aide Abuse Registry, has been kept for about 10 years in Mississippi and there are now more than 400 people listed on the registry.

To make sure loved ones are getting the best care they possibly can, Lang suggested that their relatives make frequent visits.

Rachel Pittman, health-planning senior at the MSDH Planning and Resource Development Department, explained the process of opening a nursing home in Mississippi.

First, the MSDH asks that they submit a notice of intent 30 days prior to submitting their application. Once the application is submitted, MSDH takes 15 days to review it. If it is not complete, the applicant has 15 days to complete the application.

Once the application is completed, it is published in the newspaper and all affected parties are notified. The application is also published on the Internet. Forty-five days from the date the application is complete, a staff analysis must be done.

The affected parties then have 20 days from the date the staff analysis is made public to request a hearing, and if no hearing is requested, it goes to the state health officer for their decision. If no hearing is requested, it generally takes 90 days in all to approve a new nursing home.

Currently, there is a moratorium on all nursing homes in Mississippi, although 20-bed Alzheimer's units are being awarded to various parts of each of the four districts in the state. The MSDH is reviewing those applications at this time and they will be published Aug. 15.

According to Ingrid Williams, corporations or individuals can own nursing homes in Mississippi. Although the licensee's name is on the license, MSDH does know who the corporation owner is.

There are currently two corporations in Mississippi that own nursing homes and have filed Chapter 11 bankruptcy. They are the Mariner Post-Acute Network Inc., which owns 11 facilities in Mississippi, and Vencor, which owns one facility in the state.

But McLemore said that their filing for bankruptcy has not affected the way their facilities are being managed.

“To be perfectly honest, one of the things that we have found in some of the nursing homes was that the service really wasn't any different,” she said.

“If it was a nursing home that was giving bad care or good care, it was basically the same. There were some exceptions, but generally it was not any different than the care they had already been receiving.”

This information about which corporations own what nursing homes, although not private, is hard to get, according to Vancore. He and other members of Wilkes & McHugh are frustrated with the turnaround time.

“The process sounds very cumbersome and slow,” he said. And although he said personnel at the MSDH were “polite, professional and kind,” he said, “the state program is not adequately serving people's needs.

“You want efficiency in the litigation system. We're having a hard time getting anything.”

Ultimately, Wilkes — plans for Mississippi are to create alternatives so that families can be assured of appropriate care for their loved ones.

“We're not coming in to attack the people who work in nursing homes,” Wilkes said. “It's a system that is sick.

“Let's get rid of nursing homes as our primary alternative. Nursing homes are like orphanages, they don't work.”

 

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