Elder Abuse & Neglect Law Blog : Seattle Elder Abuse Lawyer & Attorney : Stritmatter Kessler Whelan Coluccio Law Firm : WA Neglect, Insurance Bad Faith

Often times, a claim for elder neglect also involves a claim for violating the standards of medical care. For instance, failure to properly treat a pressure sore usually involves the elder neglect of simply not treating it, but also the failure to adhere to standards of pressure sore treatment and prevention in the medical community. For the medical side of the claim, a claimant had to jump through hoops in order to sue the wrongful party. This meant that, without the benefit of any discovery, a claimant still had to get a doctor to agree that someone else acted below the standard of care. 

The Washington Supreme Court today invalidated the requirement of a certificate of merit. Because the opinion says so much about what justice is, what justice requires, and how we should treat impediments to justice, I have included it after the jump.

I cannot stress how much of a win this is for patients rights. Medical negligence claims are one of the hardest to prove because it involves judgement of a doctor, often in complex situations. Many times, if a hospital or doctor knows they screwed up, they will impede your pre-trial discovery, hindering your ability to obtain a certificate of merit. The striking down of the certificate of merit requirement removes this procedural roadblock and allows the case to move forward on an even keel with all other negligence claims. It removes a procedural hurdle that was a bar to so many negligence claims, regardless of whether the provider violated the standard of care. This will allow people to have their day in court -- to be heard.

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Joseph Thurura, A 32-year old former assisted living employee has been found guilty of rape by Judge Richard McDermott in King County Superior Court. The rape occurred while the victim, Jaime - a 45-year-old woman who is blind and mute, was living at Integrated Living Services, an assisted living facility in Kent, Washington.

The Seattle Post-Intelligencer reports:

Unable to identify her assailant, police took DNA samples from 11 men who had been in a position to have sexual contact with the woman. Prosecutors asserted that Thurura proved a 99.99 percent match to DNA recovered from fetal tissue.

McDermott's ruling means Thurura faces 6 ½ to 8 ½ years in prison. He is scheduled to be sentenced August 14 at the Norm Maleng Regional Justice Center in Kent.

An investigation showed that the facility had done criminal background checks, and the staff was informed as to signs of elder abuse. Unfortunately, the discovery of those signs did not translate into a check for rape until Jaime was found to be pregnant.

If your loved one is in a nursing home, be aware of the signs of abuse. Bruising, scratching, or behavior outside the norm for them could be indicators of a traumatic event. Seeing them early may help to prevent abuse or stop it early on. 

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It's rare that I see a blog post or a shift in the law that catches me off guard. Its even rarer that such a thing also reaffirms my belief that we will be able to get these companies to change their ways. Joseph Lamy recently posted about a landmark decision out of the United States Court of Appeals for the Third Circuit. The case, Grammer v. John J. Kane Regional Centers, recognizes that an action for rights abuses was created under the Federal Nursing Home Reform Amendments (FNHRA).

While Grammer's recognition of a civil rights action at a circuit level is monumental, the recognition that this is a civil rights action is not new. Turns out the Eastern District of New York decided the same thing last year. 

     For all these reasons, I conclude that plaintiffs are part of the class for whose particular benefit the NHRA was enacted, and that the NHRA creates a federal right that plaintiffs may enforce under § 1983. Accordingly, plaintiffs meet the first Blessing factor, as limited by Gonzaga. Moreover, there does not appear to be any dispute that the statute meets the remaining two Blessing factors-that the statute is not “vague and amorphous” and that it imposes binding obligations on the state. The statute mandates a clearly-defined process to be followed by the state before an individual with mental illness may be admitted to a nursing home and if an individual has a significant change in condition while in the facility. See 42 U.S.C. §§ 1396r(e)(7)(A)(i), (e)(7)(B)(i), (e)(7)(C)(iii); 42 C.F.R. §§ 483.104, 483.106, 483.112, 483.126, 483.128, 483.132. The PASRR regulations are precise, unambiguous, and mandatory.

Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008).

It looks like a framework is starting to emerge for the recognition of § 1983 cases, with recognition in the second and third circuits. 

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