San Francisco Injury Lawyer Blog

Federal regulations require that each resident of a nursing home receive the necessary care and services to attain or maintain physical and mental health. Residents who are unable to independently carry out daily activities, such as grooming and eating, are entitled to receive the highest level of services needed to maintain good nutrition and personal hygiene. Also, it is required that nursing home facilities provide each resident with a nourishing, well-balanced diet that meets the special dietary needs of each resident. Therefore, nursing homes must employ qualified dietitians and sufficient support staff and provide assistive devices and special eating equipment for residents who need them. Failure of a nursing home facility to follow dietary regulations can result in serious injuries of residents, due to dehydration and malnutrition—both of which are preventable.

Since patients are often dependent on staff members to provide them with water and food, they are especially vulnerable to dehydration and malnutrition. Malnutrition can lead to confusion, muscles weakness, bacterial and viral infections and even death. To ensure the overall health of residents is maintained, a nursing home must also maintain medically trained staff. Federal nursing home regulations state that a facility must have 24 hour licensed nursing services and a registered professional nurse for at least 8 consecutive hours every day (under some circumstances there can be waivers of these requirements as long as it does not endanger the health or safety of the residents). When nursing homes fail to maintain adequate levels of staffing, residents are sometimes neglected or abused by overworked, stressed-out staff members.

Here at the Brod Law Firm, we are sometimes asked why nursing home abuse occurs. The following are typical reasons. Low wages and large numbers of residents assigned to each staff member lead to high turnover rates, which leads to mismanaged care. It is often the case that knowledge of the specific needs of residents is lost with high turnover rates, as there is little time for each new trainee to get to know their residents. As result, new trainees feel overworked and unable to meet the needs of residents, then stay a short time and quit. And the cycle goes on and on. Sadly, this happens because most of the nursing home industry is for-profit. As such, these corporations, in order to increase their net profits, try to keep their staffing costs low and hire fewer staff members than is required. So, when staff members place food in front of residents who can’t feed themselves and then don’t bother to assist them, it is essentially the same as starving them.

Growing old in America is not what it was, let’s say, 100 years ago. It used to be the case that age was venerated in society. Today, however, there is a negative perception associated with aging that is fostered by our culture. For the most part, the experience of the elderly is discounted by the media, or it is not represented at all--very definitely, youth and prestige have gained superiority over experience. Age has diminished as a distinguishing element among the elderly as it pertains to their worth. Without argument, the message in society today is this: to be worthwhile, you must be young. Consequently, as the negative image associated with aging is continually perpetuated throughout society, it leaves the elderly with a sense that they are worthless. Sadly for some elderly, the feeling of worthlessness is compounded when they are placed in a nursing home, especially if it is not a well functioning one. Without proper care at nursing home, the elderly commonly suffer from what we consider “nursing home abuse.”

Medicare and Medicaid have had a large impact on the use of nursing homes and the changes in patterns of financing have encouraged the construction of nursing homes. Despite Medicare and Medicaid funding and laws created to protect the elderly, there are few safeguards to ensure that a standard of patient care is maintained. Countless nursing home studies have found that proper staffing is one of the main factors to a well functioning nursing home. Investigators usually find that understaffing leads to verbal abuse and neglect. When nursing homes cut staff, pay lower wages or let caregiver levels slip below a state mandated minimum, the residents suffer. State inspectors continually undercover a litany of violations, such as neglecting bedsores and giving patients the wrong drugs. There is an implicit good faith agreement between staff and residents that they will receive proper care. Yet some nursing homes house, as part of their business plan, a high percentage medically fragile patients in order to receive higher reimbursements--which is dangerous when combined lower staffing rates.

A common injury due to understaffed nursing homes is the development of pressure sores--a telltale sign of neglect. Some patients, especially diabetics or those with high blood pressure, can develop pressure sores on ankles and tailbone. Sores can become so deep to the point that bone becomes exposed and then becomes severely infected. When a bed sore develops, nursing home staff must be quick to identify the wound and implement the use of medical equipment, such as pressure relieving mattresses and heel protectors, to prevent the wounds from worsening. When bed sore are not treated in their initial stage, they progress and become difficult and more costly to treat. A stage 3 or 4 bed sore typically requires aggressive medical treatment. In some cases, though, by the time significant medical treatment his utilized, many patients are already suffering from serious complications. In the most extreme cases, gangrene can set in and a patient has to have their leg amputated. And the worst cases of all are those that result in the death of a patient.

Here is a scenario that may or may not sound familiar to you: A financial advisor meets with an elderly client (maybe your mother or father or some other elderly person you care about) and encourages that client to exchange their fixed annuity for a variable annuity. Then, some years later, that same financial advisor, persuades their client to annuitize the policy, thereby causing the client to lose a substantial amount of money. This type of act is a violation of fiduciary duty and California’s elder abuse statue, which makes it illegal to wrongfully obtain and use an elder’s property. Under California’s Elder Abuse and Dependent Adult Civil Protection act, it is stated that “financial abuse” occurs when a person or entity “takes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.” “Wrongful use” occurs when any of the above mentioned actions is taken “in bad faith.” “Bad Faith” is shown when a person or entity should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative. Basically, bottom line is, an elder abuse claim is warranted when a financial advisor does not inquire enough about their client to determine that an exchange of an existing fixed annuity for a variable annuity is in their best interest.

These ‘unsavory’ marketing practices by insurers or other deceptive practices in connection with the sale of annuities to senior citizens are a common type of elder abuse. The following are some “red flag “ type situations to consider if an elderly person you care about is going to meet with or has already met with a financial advisor regarding annuities:
• Sometimes the damages arising from rolling over a fixed annuity into a variable annuity, rather than liquidating the annuity can often be substantial.
• Elderly clients can be exposed to excessive risk of loss of principal at the time of annuity reinvestment.
• As a result of annuitization, tax considerations may not have been adequately considered and the client can incur substantial income taxes on the annuity payments.
• An elderly person can be persuaded into purchasing annuities that subject them to early withdrawal penalties, fees, and arbitrarily-capped interest rates.
When a financial advisor wrongfully takes the property of a senior client to facilitate deferred annuity sales for financial gain to the detriment of the senior, it is considered sufficient grounds for an elder abuse claim. With that said, proving loss can be tricky, as a financial advisor may deny wrongdoing by claiming that the investments recommended had no value, which misses the point. Usually a claim of wrongdoing has more to do with the needs of a client—that the investments made were less valuable than other, more suitable, investments. In this type of scenario, a plaintiff attempting to prove such loss may be granted some leeway in court, but not always. If any of the above sounds familiar or if you feel you or someone you love may have been victim of unsavory business practices at the hands of a financial advisor, please contact The Brod Law Firm at: (415) 397-1130.

All kinds of legal issues are in the headlines and available to read about on internet these days. Facebook has been facing legal problems regarding their privacy settings…Yelp has had to face a class action over their advertising and sales tactics…Google faces a class action by artists, authors, and photographers, and illustrators seeking to be paid for what they create…Toyota faces class action suits regarding the recent recall and the billions lost in the value of owners’ vehicles…TLC Lasik Surgery Centers faces a class action suit accusing them of operating on patients with certain pre-existing conditions, which made them unsuitable for surgery…Denture Creams, such as Fixodent and Poligrip, have faced class action suits due to serious life threatening side effects…and, here in San Francisco, a shady landlord is being sued by City Attorney Dennis Herrera for violating building and health codes.

Here at the Brod Law Firm we are committed to helping the victims. Our Firm’s philosophy is based on one basic principal: anyone who comes to us with a personal injury issue should be treated equally and with dignity and fairness. We find it remarkable, the lawsuits that are in the daily news, from class action cases to small personal injury cases. The potential for personal injury suits exists, always. No one can foresee if or when they will fall victim to an injury. If you think you have personal injury case, don’t hesitate to call us at (415)-397-1130 for a free consultation.

Last month, Google--the most popular internet search company in the world—started offering cycling-specific information, as they finally saw it as good for business (and shares definitely went up as a result). Google said that the new feature has been the a popular request over the last couple years. As it turns out, an organization called Google Maps Bike There collected more than 50,000 signatures to endorse the addition of bicycle routes. You no longer need to go on line and search different resources to find maps of different areas, such as those provided by various bike coalitions that track bicycle infrastructure.

This new service offers a step by step, or should I say pedal by pedal, guide for cyclists and also calculates mileage. The biking directions provide time estimates for routes, the number of hills, fatigue over time, and other variables. The system is, however, geared toward the less advanced cyclist, as it provides routes with the fewest hills (a feature that might annoy the advanced cyclist). Another feature, Local Search, guides cyclists to locations where they can take a break or find bike shops along their route. There are lines on the map that help bicycle riders choose different routes: Dark green Lines highlight bike trails, light green line highlight streets with bike lanes, and dotted green lines highlight other streets recommended for cyclists. There is also a blue line on which you can click to move the route along other designated bike trails, lanes and safe streets. Displayed to the left of the map are turn-by-turn written directions.

With this new service, Google can actually help propel forward socioeconomic/environmental/ health causes, which is part of the company’s basic founding principal: provide the public with free and easily accessible information. This tool may actually motivate people to use existing bike friendly routes and promote bicycling as means for everyday transportation. And, as a natural consequence, government may begin to see the need to paint additional bike lanes-- which can provide opportunities to make communities safer, the air cleaner and people healthier. Put another way, if the public is aware of a safe and pleasant way to get around, that is one more reason to bike, leave the car in the garage and enjoy the fresh air (side note: cycling in the fresh air has got to leave you feeling more energized, buoyant and restored than cycling in the gym). It is also a chance to meet other bikers, make friends and become more social. Here at the Brod Law Firm, we think that this feature will lead to a reduction of bike accidents and promote cycling access, education and safety here in San Francisco and beyond. This tool could, maybe more than any other internet tool out there, lead to a real change in our communities, change that literally starts at our fingertips(especially if it becomes an iPhone app)!