Nursing homes face increasing number of lawsuits

Elder lawyer Lewis Fishlin says the number of lawsuits against nursing homes has risen dramatically. He said there is ‘quite a bit of money in it,’ compared to years ago when the cases were ‘not worth taking from a lawyer’s perspective.’

The Riverdale Press looked at several graphic lawsuits against nursing homes in The Bronx to tell the broader story of an increase in elder abuse. 

Aug. 30, 2007

The Riverdale Press

Nursing homes face increasing number of lawsuits

By Tommy Hallissey

Local nursing homes are facing their share of an ever-expanding number of lawsuits, but the circumstances outlined in an action filed by attorneys for Theodore Spiegel are particularly grim.

At 2 a.m. on March 4, 2005, Mr. Spiegel’s phone rang. The call was from the Jewish Home and Hospital’s Bronx Division at 100 W. Kingsbridge Road, where his mother Apolonia Spiegel was living. Twenty minutes earlier, she had died at the age of 89. She died tranquilly, in her sleep, he was told. But, Mr. Spiegel said, the handling of his mother’s corpse was anything but peaceful.

Court papers outline Mr. Spiegel’s assertions. He was told he had just one hour to come and view his mother’s body before it was transferred to the morgue in the basement. He declined.

A certified nurse and two orderlies first moved the body to the basement of the Jewish Home and Hospital’s Harry and Jeanette Weinberg campus. New York Mortuary transferred Ms. Spiegel’s body to Funerals and Cremations by Michael on East Tremont Avenue.

The phone rang again, this time for Mr. Spiegel’s brother Charles.

The funeral parlor told Charles Spiegel his “mother’s head was, essentially, cracked open at the scalp area above her forehead,” according to an affidavit.

This lawsuit against the Jewish Home and Hospital, the funeral home and the intermediary, is one of an increasing number of actions involving local nursing homes. Over the last two years, an average of one a month has been filed in Bronx Supreme Court.

Elder lawyer Lewis Fishlin says the number of lawsuits against nursing homes has risen dramatically in the last 20 years. He said there is “quite a bit of money in it,” compared to years ago when the cases were “not worth taking from a lawyer’s perspective.”

According to Mr. Fishlin, the trend of elder lawsuits isn’t a Riverdale phenomenon. “It’s certainly not isolated in New York,” he said.

More than two years after Ms. Spiegel’s death, the cause of the mutilation of her corpse remains unknown. The Jewish Home and Hospital asserts in court papers that “as a result of the investigation, it was determined that the claims made in this case do not relate to The Jewish Home and Hospital for Aged.”

A New York Police Department investigation determined the fracture likely occurred in transport, and even the plaintiff’s attorney isn’t sure what happened. “It’s really unknown who caused the mutilation or how it happened,” said Stephen Jacobson, a lawyer from Bernstein & Bernstein, who is representing the Spiegels.

Mr. Jacobson stressed his loyalties lay with his clients, but he conceded a greater good may come from litigation. “One of the goals is to compensate the victims, a broader public goal I suppose would be that the nursing homes suffer consequences if they don’t uphold their responsibilities.”

Who benefits?

Chad Young, a lawyer with Druckman & Sinel, agrees. “Our philosophy is, if we sue them every time they do this one day they won’t do this anymore because they fear lawsuits,” he said. “And who benefits? The patients.”

Mr. Young represents a plaintiff suing Fieldston Lodge Care Center at 666 Kappock St. in Spuyten Duyvil. Bertha Mikell, the guardian of James Lee, asked his firm to sue the Fieldston Lodge in what Mr. Young said may now become a wrongful death suit.

The $10 million suit, filed in January, before Mr. Lee’s demise, alleges Fieldston Lodge “failed to prevent plaintiff James Lee from being subjected to physical, mental and verbal abuse,” according to court documents, and that Mr. Lee “was rendered sick, sore, lame and disabled; suffered injuries both internal and external; was caused to be confined to his bed for a lengthy period of time.”

The suit also charges Mr. Lee became ill because Fieldston Lodge Care Center “negligently failed to prevent infection and failed to keep certain medical equipment clean and free from blockage,” among 35 other failings.

Mr. Young cited Mr. Lee’s treatment record in declaring “he developed health complications and died.” Mr. Lee died on April 19, 2007 at age 85, three months after the initial suit was filed.

Fieldston Lodge Care Center’s attorneys Kaufman, Borgeest & Ryan denied the claims in the lawsuit in court papers. Neither the law firm nor the nursing home offered any further comment.

Mr. Fishlin said many of these suits never reach trial. Trials can be difficult for seniors in their waning days, he said, and plaintiffs die before a jury is called. “Do they make it to trial? Yes,” said Mr. Fishlin, “but not as much as other cases.”

Eight suits

Eight of the local suits have been filed against the Hebrew Home for the Aged at Riverdale, though two of them were dismissed. In one case, the administrator of the estate of Harriet Silber filed papers on Aug. 13 charging medical malpractice in Ms. Silber’s death.

She died in July 2006 at the age of 77. The affidavit lists 62 failings of the home, including failure “to protect Harriet Silber from foreseeable harm, including, but not limited to, the development of malnutrition, dehydration and ulcers,” failure “to provide adequate and appropriate health care and protective and supportive services and failure to prevent mental and physical abuse of Harriet Silber.”

The $2 million suit, which charges health care rules and regulations were not followed, also names the Hebrew Hospital Home and Montefiore Medical Center’s Albert Einstein Division.

In Bronx Supreme Court papers, the Hebrew Home for the Aged categorically denied the charges presented by Ms. Silber’s family.