Last year, the Centers for Medicaid and Medicare Service (CMS) finalized a new rule that bans nursing homes from forcing patients and their families into private arbitration. These mandatory arbitration clauses were hidden in the contract’s fine print, and many families were unaware of the term or misunderstood what private arbitration entailed. This type of arbitration is a practice that keeps any potential nursing home abuse charges out of the public court system, which weakens a patients’ legal leverage.

On June 5, 2017, CMS released another proposed rule that would almost entirely do away with the ban on mandatory arbitration clauses in nursing home contracts. These supposed changes are to “strengthen” the transparency in the arbitration process. However, consumer advocates quickly condemned the change with the Fair Arbitration Now (FAN) Coalition arguing the reversal will hurt nursing home residents, who are at the most vulnerable time in their lives.

This almost complete 360-degree turn is largely the result of the change in power this January. The current presidential administration will be forcing seniors to sign contract terms that negate their right to sue the court if they are victimized by neglect or abuse.

A seizure is defined as abnormal electrical discharges in the brain, which cause symptoms such as convulsions, altered consciousness, and brain disturbances. Seizures in infants can indicate neonatal brain damage has occurred. Often, they are the first sign of a birth injury. Frequently, seizures develop in babies who were deprived of oxygen during the delivery process. Many seizure-causing injuries occur near or during delivery.

Hypoxic Ischemic Encephalopathy (HIE)

HIE is the most common cause of neonatal seizures. This brain injury is caused by a lack of oxygen to the brain during birth. This deprivation can occur from decreased oxygen in the baby’s blood (hypxemia/hypoxia) or decreased blood flow to the baby’s brain (ischemia).

There are a number of conditions that can cause HIE, including:

• Untreated maternal high blood pressure
• Umbilical cord injuries, such as the cord becoming wrapped around the baby’s neck (nuchal cord), umbilical cord prolapse, or cord compression.
• Uterine or placental complications, such as placenta previa, placental abruption, placental insufficiency, or ruptured uterus.
• Tachysystole (excessive uterine contractions)
• Complications due to the baby’s size or position
• Brain trauma or hemorrhages in the baby’s brain
• Improper use of delivery instruments, such as a vacuum extractor
• Delayed delivery
• Delayed emergency C-Section
• Prolonged second stage of labor
• Infection
• Kernicterus, a difficulty getting rid of the red blood cell byproduct, bilirubin.

These conditions all can put the baby at risk, though many can be diagnosed early and treated. Careful monitoring of the mother and infant for distress during the delivery process can reduce the chances of many of these injuries.

In previous years, the Pennsylvania Department of Health has been rather lax in its penalty system regarding complaints of substandard and negligent care in nursing homes. However, within the first four months of this year, there has been a drastic change. In fact, the state has exacted more fines during this period than the previous three years combined, hinting at a much-needed change in how the industry’s failings are handled.

While it is promising to see substandard nursing care finally being addressed, it is still to be seen if improved regulations and strict enforcement of fines will improve the state’s 700 nursing homes. A spokesman for the industry claimed these heavy sanctions would only result in financial strain on operators, rather than contribute to better outcomes for nursing home residents.

For too long, nursing homes were allowed to provide poor care, resulting in an epidemic of injuries and death to nursing home residents across the state of Pennsylvania, most of which were all preventable and easy to avoid through more attentive treatment. Without the fear of penalties looming over them, nursing home operators and staff were not inclined to rectify their shortcomings. That is, until now.

The total thus far for the first four months of fines amounts to about $796,750. For the three years that ended December 31^st, records show fines totaling up to $639,500. These numbers do not include federal fines recommended by the state, which are also usually more substantial. State surveyors sanctioned 86 facilities so far, whereas only 72 were sanctioned last year, and 47 in 2014 and 2015 combined. These numbers make it clear that things are changing, even if it is still unclear where these changes will lead.

Despite our years of technological advancement and study of the human anatomy, childbirth is still considered extremely dangerous in the United States. According to data collected by the Centers for Disease Control and Prevention (CDC), more than 600 American women lose their lives due to complications that arise either during pregnancy or the actual process of delivery. By other estimates, nearly 60,000+ other women will experience severe health complications during childbirth that require hospitalization or other treatment methods to correct.

In comparison to other countries in the developed world, the U.S. is one of the worst when it comes to medical safety for pregnant women and new mothers. In fact, the mortality rate related to pregnancy deaths in America is three times higher than that in Canada, and six times higher than that in Norway, Sweden, and Finland. While so many other countries are seeing these rates drop over time, it has actually spiked in America since 2000. It all begs the question, “What is going on with maternal care in America?”

Better Care Would Prevent More Deaths

It is impossible to pass up the high pregnancy and childbirth mortality rate in the United States to poor luck, bad health, or simply connected to the country having a high population when the CDC itself has stated that many of the deaths should be entirely preventable. Indeed, it believes around 60% of childbirth and pregnancy deaths would not happen if hospitals maintained better conditions, doctors received thorough training, and healthcare in the country overall was improved. In an almost contradictory way, the CDC cites evidence of extremely low infant mortality rates in the country, improved over decades of care and research, as the same evidence that shows pregnant women and new mothers could and should be getting better care.

Many pregnancy-related deaths are linked to:

• Blood clots
• Hemorrhages
• Heart failure
• Preeclampsia

While all of these conditions are severe, none should be so dangerous that mortality rates noticeably rise. With preparation in the delivery room and attentive obstetrician care, many of the worst complications should be avoidable, or at least predictable enough to stem.

The National Association of Distinguished Counsel (NADC) is one of the leading organizations in the country that recognizes and rewards legal professionals that continually and consistently exemplify what it means to be at the top of their class. This group uses high scrutiny and in-depth research to only pick out who it believes to be the best of the best. By the time it is finished choosing its annual members, less than 1% of all actively practicing lawyers in the country will receive an invitation to the Nation’s Top One Percent by NADC.

It is with much pride that our team at Shrager & Sachs in Philadelphia can announce that Attorney Robert Sachs has been selected to the 2017 list of the National Association of Distinguished Counsel Nation’s Top One Percent. In order to have been selected, Mr. Sachs must have met and exceeded the difficult standards set forth by the NADC, including passing the analyses of blue ribbon panelists and judicial review groups. (Click here to visit the official NADC website and learn more about this great association.)

Informed consent is a crucial aspect of medical treatment. As a patient, you have the right to a conversation with your doctor regarding any treatments or medications you are beginning. You doctor should talk to you about the procedure, side effects, what you can expect afterwards, how to take medications, or any other information related to your treatment. They should also answer any questions you may have.

Informed consent is important, but why? Informed consent is one step of many that ensure the safety of patients. Opening a dialogue with the health care provider allows patients to ask questions to increase their own understanding, and to potentially prevent errors. Your contributions to this conversation let your doctor make decisions that are better for you.

There are more than 2 million cases of elder abuse every year, and those are only the cases that are reported. One out of every 10 people will experience some form of elder abuse. Because families often don’t have the time or resources to devote to the full-time care that seniors sometimes need, they depend on skilled nursing facilities to provide help where they can’t. When skilled nursing facilities care for elderly people, they and their friends and relatives are placing their trust in these businesses. When that trust is broken, it is usually the result of negligence or outright abuse of the elderly person.

Because the senior population has started to grow as more baby boomers continue to age, big corporations have taken to buying or starting skilled nursing facilities. Around 70% of all skilled nursing facilities are run by for-profit companies, and some of them are being purchased by Wall Street investment firms. Unsurprisingly, the new administration has taken note of another way it can assist hedge funds and banks.

In 2016, the Centers for Medicare and Medicaid Services enacted a policy that said nursing homes would no longer receive federal funding if they used forced arbitration clauses in their contracts. Forced arbitration clauses are contract terms preventing people from suing a facility, no matter what laws it breaks. Anyone harmed by illegal acts in these institutions can only bring cases to private arbitrators, who are generally beholden to the nursing homes or the corporations that own them.

Now, the current administration is proposing to lift the ban on forced arbitration clauses. Now, if a nursing home abuses a senior, the family can use the public court system to seek justice. If the ban is lifted, nursing homes benefit from the secretive system of arbitration, which isn’t open to the public, press, or regulators. It also allows gag orders in the form of confidentiality provisions, allowing them to hide their crimes easily.

Although medical science has allowed us to live longer and healthier lives, it is not without risks. Nearly all types of medical procedures and treatments pose risks to patients. While some risks are unavoidable, many can be effectively managed in order to ensure positive outcomes. Unfortunately, when medical professionals commit errors, deviate from the recognized standard of care, or otherwise fail in their duty of taking reasonable measures to reduce risks, patients can suffer preventable harm.

Medical mistakes on the part of physicians, nurses, and other health care providers injure and kill hundreds of thousands of patients each year in the United States. In fact, the Journal of the American Medical Association (JAMA) reports that medical negligence ranks just behind heart disease and cancer as the third leading cause of death nationwide. With medical errors as common as they are, one would think that medical providers would be honest and upfront when mistakes occur. According to a recent study, however, most health care professionals would actually work to conceal their role in a medical mistake.

Juries typically recognize that nursing home abuse causes severe consequences and permanent emotional scarring, and occurs due to preventable mistakes or intentional harm. As a result, some cases close with a seven-figure award amount that the harmed elder and their family absolutely deserves. A recently proposed bill could counteract progress, though, by seriously limiting how much a plaintiff can collect in noneconomic damages for successful nursing home abuse claims.

HR Bill 1215, which is being advertised as the “Protecting Access to Care Act of 2017,” would limit noneconomic damages in nursing home abuse cases to just $250,000, regardless of the details of the case. The number of victims, the extent of the harm, and the intent of the abuser would all be irrelevant if this bill is allowed to pass. Even in cases where an elder is sexually abused repeatedly, the noneconomic cap would be just $250,000.

Medical professionals have a legal duty to treat patients in accordance to a recognized “standard of care.” When they deviate from this standard, such as when they fail to properly diagnose a condition that should have reasonably been identified, they can be held accountable for their negligence and liable for harm and damages patients suffer as a result.

At Shrager & Sachs, our Philadelphia medical malpractice lawyers have recovered millions of dollars in compensation on behalf of patients who were injured at the hands of a physicians, nurses, and other health care professionals. These include patients who suffered preventable harm as the result of a misdiagnosis for a condition that should and could have been correctly detected.