Recent Blog Posts

Cherryville personal injury attorney

James Roane — Thu, 17 May 2012 12:59:00 GMT

I am from Cherryville and graduated from Cherryville H.S. in 1987. I was just looking online to see what personal injury attorneys practice in Cherryville. Not many. When I Googled, "Cherryville personal injury attorney" really all I got were referral sites. National referral sites have started adding local search terms to make them appear to be truly local. They will just set up a website using the words "Cherryville" and "attorney" and then hope to get clicks. Some attorneys pay to be a member of these referral sites, and the potential cases will be fowarded to them. Make sure to check out the credentials of any attorney on those sites.

I still have family in Cherryville, and I come home all of the time. So, I have considered starting a small office there or at least start taking cases in the area. I only handle personal injury cases which include car wreck auto accident cases, wrongful death cases, nursing home abuse, etc. I don't take most personal injury cases, and I don't handle fender bender whiplash cases. Other personal injury lawyers and law firms take these cases. They try to handle a high volume of these injury cases to make money. If you have such a case, I will be glad to give you free legal advice to help you handle it yourself but I will not take the case.

I am the opposite. Instead, I take catastrophic injury cases. Usually the medical bills will be over at least $20,000 and there are lost wages and permanent injuries. These injury cases are hard fought by insurance companies for the simple reason that they cost more money to resolve either through settlement or trial. Typically, I will have to file suit on these cases and spend ten thousand dollars or so before we even begin to have decent settlement offers. While I could settle a case cheap and fast, that is not the best way to do it. Insurance companies will never pay fair value without making them do it. Usually, this takes time, money and skill. If you need a personal injury attorney in Cherryville, give me a call or email me: james@roane-law.com I will help.

Greensboro personal injury case

James Roane — Tue, 08 May 2012 10:41:00 GMT

Not all cases are the same, some can involve significant liability issues. This is especially true when it comes to premises liability claims. I had one such premises liability trial in Greensboro. In that case, a man and his son were going to an auto parts store. When they got there, they saw some scrap metal behind the store in a vacant lot. They actually sell scrap metal. So, they went to go look at it as they were going to consider making an offer to buy it. When the father went over to it, the metal looked like a square boxed metal frame with a hinged lid. about five feet square. He put one foot on the box and pushed down. The box then sprung open and flung him in the air about 20 feet. He fell back onto the metal and shattered his leg and suffered a mild brain injury.

He had multiple surgeries on his leg including rods and pins. He had to have a steel plate put into his head. He had over $100,000 in medical bills and no health insurance. He filed a claim against the insurance company that insured the property. The insurance company argued that this injury was his fault. The insurance company offered $0 and said that they would never pay. So, we filed a lawsuit and then tried the personal injury case in Greensboro.

It was a hard fought trial. The defense attorney was very good, and there was an eyewitness and an expert witness against us. The eyewitness said that he saw the guy jumping up and down on the metal "like a monkey". On cross examination, he stated that he was driving down the road when he saw this. He said that he kept watching and actually turned right onto a side road without ever taking his eyes off of him. Of course, this just isn't true and the jury knew it. People just can't drive that far and then take a right without ever looking. However, the jury still wasn't sure if the man had been on top of the metal.

The defense attorney also hired an engineered that "proved" the man was jumping up and down on the metal. The engineer was a smart witness from Raleigh and explained what happened using very complex math. I argued that this simply couldn't have happened this way. The metal was hinged at one end only. So, it opened like a clam shell, or catapult. I got some Lincoln Logs, and asked the defense expert to get off of the stand and demonstrate this principle. I wanted to know how a catapult could throw a person straight up in the air and come right back down in the same spot. I told him that catapults throw things forward, otherwise that would be the dumbest medieval weapon of all time. He refused to demonstrate with the Lincoln Logs. In closing, I demonstrated instead and the log flew forward all the way to the clerk and judge. I hit the log a bit too hard in my eagerness to show the jury, the judge wasn't pleased. This judge is a great judge who is still on the bench. If you are reading this- sorry judge. However, we won the case.

I told the jury that if the man was actually jumping on top of the metal, he should lose. Find against him if you believe that because it would be his fault. Additionally, I told them this metal was a spring trap. It was an upside down dock leveler capable of lifting thousands of pounds. What person leaves a thing like this "cocked" in the back of their building? Kids play back behind that building, and a kid wouldn't have survived this injury. The point of telling you about this trial was to show two main things. First, witnesses simply can't always be trusted. In this case, I investigated the history of this "eyewitness" and found out that he had once ran a nightclub with the property owner defendant. The engineer from Raleigh obviously made up his math, because catapults just don't work like that. While I have seen plenty of defense experts exaggerate, I always shocked to see one just make something up out of thin air. Please don't ever underestimate the ability of large insurance companies to find expert witnesses to testify against you. They will testify to anything.

Second, even though contributory negligence is always alleged in personal injury premises liability cases, the defense attorney must prove it. In jury trials, it is their burden of proof. They can't just come to court and allege it. Finally, Greensboro jurors are very fair and they have a tendency to see through these tricks. Even though insurance isn't admissible in jury trials, they just knew that some other entity had been pulling some strings. The insurance company even hired another expert from Virginia to testify that he really didn't have a brain injury. Huh? They had to put a metal plate in his head to hold his brain in.

Ultimately, premises liability cases in Greensboro can be won, but the personal injury attorney handling the case must work hard and fully investigate the case. Don't just sit back either, do some digging on your own. The more serious injuries that you have the more you should get involved. Good luck!

Winston-Salem car wreck trial

James Roane — Wed, 02 May 2012 16:42:00 GMT

What are Winston-Salem jurors like, and how does Winston-Salem compare to other counties? Of course, the following only applies to civil court as I don't practice criminal law. With that in mind, I will use my last car wreck case and jury trial as an example. In that case, the plaintiff was injured by a defendant who T-boned his truck. The wrinkle is that the defendant was driving a motorcycle. The injury occured when the truck ran over the motorcycle, which caused it to bounce and almost ran it off the road.

The insurance company was State Farm. In my experience, State Farm greatly undervalues claims. In my last three trials, I have obtained excess verdicts (verdicts over insurance limits) in each case. In this case, State Farm only offered $1,500 even though his medical bills alone were just over $100,000. In fact, the defense attorney literally laughed in my face when I told him that the offer was far too low. He stated that no jury in Winston-Salem would render a verdict for the plaintiff. So, we went to trial.

I was surprised by the high level of education of the Winston-Salem jury panel. There were business executives, nurses, physical therapists, Physician Assistants and other highly educated jurors. Traditionally, that can be viewed negatively by the plaintiff's bar as plaintiff attorneys generally feel that highly educated jurors are less sympathetic and more quick to blame plaintiff's for their injuries. However, I don't mind education. What I really need are simply people who will keep an open mind. That is it, and that is what I got.

Even though it was just a car wreck case, the injuries included fusion and the treatment was extensive. The jury was very attentive, seemed to pay attention to all of the evidence- including defense evidence. Ultimately, the jury came back with a verdict of $300,000. Of course, this greatly exceeded the $1,500 offered by the insurance company. I talked to the jurors afterward. They were very reasonable. They didn't base their decision on sympathy or pity. The plaintiff became emotional during the trial, but they actually didn't like it much. Instead, they weighed the medical evidence and the medical bills plus lost wages and simply wanted a verdict that was fair.

The answer to the question: "in a car wreck case, can personal injury attorneys get a fair jury in Winston-Salem" the answer is definitely yes.

If all nursing homes are understaffed, does that make it ok?

James Roane — Thu, 26 Apr 2012 18:20:00 GMT

Finally, nursing homes may cynically, and unfortunately, accurately argue that very few nursing homes in North Carolina provide staffing at RUG staff time expectations. Therefore, how could this be evidence of the standard of care? It takes the same amount of time to change a diaper in Arizona as it does in North Carolina. This is not complex medical treatment, but instead is just minutes and math. Regardless, the standard of care is not simply the mean or average, but instead what is reasonable under the circumstances. One example of such a concept, "testimony of several physicians that transfer based on the indigency of an emergency patient was a common practice among private hospitals in the Phoenix area in 1976 is, therefore, only probative of a negligent custom."[i] Most of the cases differentiating negligent custom from standard of care stem from the T.J. Hooper case. [ii] In a products liability case, the Arizona Court stated,

"The malpractice requirement that plaintiff show the details of conduct practiced by others in defendant's profession is not some special favor which the law gives to professionals who may be sued by their clients. It is, instead, a method of holding such defendants to an even higher standard of care than that of an ordinary, prudent person. Prosser, supra § 32 at 185. Such a technique has not been applied in commercial settings, probably because the danger of allowing a commercial group to set its own standard of what is reasonable is not offset by professional obligations which tend to prevent the group from setting standards at a low level in order to accommodate other interests. Thus, it is the general law that industries are not permitted to establish their own standard of conduct because they may be influenced by motives of saving "time, effort or money." Prosser, supra § 33 at 194. Long ago, Judge Learned Hand expressed the rule in a case in which the defendant claimed that it had not been negligent in failing to put Mr. Marconi's invention on its tugboats: 'Is it then a final answer that the business had not yet generally adopted receiving sets? ... Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.'"[iii]

For staffing patterns, go to the CMS website: http://www.cms.gov/CertificationandComplianc/13_FSQRS.asp#TopOfPage and download the "New! Expected and Adjusted Staff Time Values Data Set- Updated November 2011". Look down the list of nursing homes and compare their actual staffing with expected staffing. Some private pay and smaller nursing homes exceed expected staffing. On the other hand, look at Britthaven, Beverly, Brian Center and other large chains' staffing numbers. The type of facility makes a big difference as studies show that higher profits are associated with lower staffing levels.[iv] The money has to go somewhere, and most of the for-profit chains want it to go to them. A desire for profit is fine and is simple capitalism. However, not when someone takes $100 in payment for services then only spends $50 of what was promised.

To summarize, use the North Carolina standard that requires enough staff to provide ADLs and personal care. Don't accept the 2.1 nhppd standard from the defense. Use caution with the RUG expected staffing arguments, as this is a work in progress that I have argued but not actually attempted to get into evidence yet. At a minimum explore the RUG staff expectations with experts and defense witnesses and compare actual reported staffing to other nursing homes in the community. Aside from litigation, our clients, or the case itself, we need more attention on nursing home staffing. Insufficient staffing is the number one cause of nursing home abuse, and we must stop it.

[i] Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984), citing T. J. Hooper.

[ii] In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) (Thanks listserve friends)

[iii] Rossell v. Volkswagen of America, 147 Ariz. 160, 709 P.2d 517 (1985), quoting, T.J. Hooper.

[iv] "Nursing home spending, staffing and turnover." Bita Kash, Nicholas Castle and Charles Phillips. Health Care Management Rev. (July-September 2007)

Handling property damage claims

James Roane — Fri, 13 Apr 2012 13:52:00 GMT

Usually, clients can handle property damage claims from car wrecks on their own, but we will help for free if they run into problems. One of the main problems people face is that the insurance company only has to make the repairs with after market parts. This can include used parts or parts not from the dealership. The theory is that the parts that were on your car were used anyway, so that is all they need to replace. A second problem is determining the value of your car. The insurance company is only required to pay the Fair Market Value for your car. This doesn't mean replacement cost. So, if you drive an old junker that still runs great, you may not get much money for your car. Look at Kelly Blue Book and other online sources to determine value.

One of the more recent claims that adjusters are making is claiming that you only have 30 days to file a claim for property damage or diminished value. You must promptly call the insurance company about your claim. The NC Administrative Code states that "30 days shall be considered promptly asserted". So, this does imply that beyond 30 days isn't prompt. Just make sure that you file these claims within a month to avoid a hassle. Remember that if there is substantial damage to your vehicle to claim diminished value. When you go to buy a used car, don't you always ask "has this car been wrecked"? This will decrease the car's value. Usually, if you fight and demand diminished value, the insurance company will pay an additional 10% of the cost of the repairs for such reduced value.

Nursing homes pocket the money

James Roane — Thu, 12 Apr 2012 18:15:00 GMT

Nursing homes will argue that the RUG scores are for Medicare residents only, and that most of their residents are paid by Medicaid. Since the Medicaid reimbursement is a lot lower, the number of staff should be lower. However, this ignores what the STRIVE study showed. The STRIVE study, and the other three older time studies, showed how long it took staff to perform certain activities. It doesn't matter how the nursing staff was getting paid, this wasn't part of this calculation. It takes just as long to dress a resident of a particular RUG score regardless if they are a Medicare resident, Medicaid resident or even private pay. The STRIVE study actually included all residents regardless of pay source. Even if the facility was paid more, there is no evidence they would hire more staff. Just look at this title of a November 2002 GAO report to Congress: "SKILLED NURSING FACILITIES- Available Data Show Average Nursing Staff Time Changed Little after Medicare Increase."[i] The facilities try to have their cake and eat it too.

The nursing homes may argue that the Medicaid reimbursement rates don't allow them to provide the levels of staffing to meet the needs of residents. While the ability to pay and the profitability of nursing homes is too large of a topic for this article, it really doesn't matter for our initial analysis- how many staff are needed to provide reasonable care. Again, according to North Carolina code set out above, subsection (b) states, "the facility shall provide other nursing personnel sufficient to ensure that activities of daily living, personal care, delegated nursing tasks and other health care needs, as identified in each patient's plan of care, are met." While this time studies may not be definitive as to how many staff hours per patient day are reasonable, it certainly is strong evidence and there are no studies to the contrary.

Even if we buy the nursing home arguments that the RUG scores should only apply to Medicare residents, those residents aren't receiving sufficient care either. Around ten to fourteen percent of all residents in skilled facilities are Medicare eligible. The facilities specifically target as many Medicare eligible residents as they can admit, because their reimbursement is so high. Since the Brian Center only provided 2.8 nhppd, did they instruct staff to make sure and spend extra time with the Medicare residents? They would need to almost double the amount of staff to meet the Medicare residents' needs. If you depose CNAs and nursing staff, they will all testify that this didn't occur. Why would Medicare continue to pay based on these high RUG payments, when the data shows that the corresponding services weren't provided? Medicare should pay for the actual staff and actual care provided and not just on the acuity level of residents. To do otherwise is to simply line the pockets of the nursing home chains. If you suspect such nursing home abuse or neglect, call the lawyers at Roane Law. We will talk to you for free and at least help you to get some answers.

[i] GAO-03-176

Nursing Home Staffing Studies

James Roane — Thu, 05 Apr 2012 18:10:00 GMT

The Staff Time and Resource Intensity Verification (STRIVE) study evaluated the relationship between reimbursement and the actual staffing required to provide care per RUG score.[i] This study was sponsored by the Centers for Medicare & Medicaid Services (CMS) along with a collaboration of consumer advocates, clinicians, and the nursing home industry and others. The extremes were removed such as the very worst facilities or the very best special care facilities. Once they had a representative sample over a geographic area of fifteen states and more than two hundred nursing homes, the study monitored the time that it took to care for residents. They recorded staff times for ADLs, personal care, and all aspects of care received in skilled facilities. They then totaled up and averaged the staff time per RUG score. The study didn't just include Medicare residents. All residents, no matter the pay source, were included. The purpose was to determine the amount of time that nursing home staff spent caring for residents while exercising current care practices.

The STRIVE study has been completed and the new staff time expectations have been released. Just for an example, let's look at the Brian Center of Lexington. Historically, it has had a very low level of staffing. In the November 2011 staffing study, their expected level of staffing based on their RUG scores was 4.55 nhppd while the facility self-reported only 2.84 nhppd. Shouldn't the facility provide staff at or near the expected levels? If a facility is operating at staffing levels that are around half of the expected amounts, it should be no big surprise if the facility delivers poor care. In addition to many private studies, the GAO has also determined that quality of care is related to staffing and not the amount spent by the government as only around half of all funds received by nursing homes were spent on staffing and medical supplies.[ii]

As stated above, subsection .30 of the federal regulations requires enough staff as determined by resident assessments. The resident assessment is the MDS form, which generated a RUG score and in combination with the staff time studies estimated the number of staff needed. Shouldn't the nursing home be required to at least provide staffing close to these expected numbers and at a minimum be forced to increase staff with reimbursement increases? Whenever I depose a managerial employee, and I ask if they are required to increase staff if there is an increase in acuity, they answer "yes". I then ask, "how are you monitoring acuity levels?" I will often get answers such as, "we just have a general feel of what is needed."

In actuality, the corporate owners set staffing numbers to establish a particular level of profitability. The budgets are set annually and adjust quarterly for profitability. However, the adjustments are not focus on costs, census and revenue not acuity. Staffing is by far the largest cost for nursing homes, so this is the area that gets cut the most. Corporate owners have easy access to the RUG information and increasing staffing as reimbursement increases would do the trick. If they don't do this, the residents suffer and are neglected. At Roane Law, our attorneys handle nursing home neglect cases. In fact, to my knowledge, James Roane handles more nursing home abuse and neglect cases than any other attorney in the Greensboro area.

[i] STRIVE study information from Federal Register Vol. 74, No. 153 (August 11, 2009)

[ii] GAO-02-431R Nursing Home Expenditures and Quality

Drunk Driving NC negligence

James Roane — Fri, 30 Mar 2012 14:20:00 GMT

In addition to the statutory Dram Shop causes of action described in earlier posts, attorneys may bring a common law negligence claim against anyone who provides a visibly intoxicated person with alcohol. The first case to address this social host liability was:

As to the cause of action for liability under common law principles of negligence we hold that the plaintiffs have stated a cognizable claim. We have not been able to find a case in this state dealing with the liability of a social host who serves an alcoholic beverage to a person who then injures someone while operating an automobile while under the influence of an intoxicating beverage. We believe, however, that the principles of negligence established by our decisions require that we hold that the plaintiffs in this case have stated a claim.

Hart v. Ivey, 332 N.C. 299, 304-305 (N.C. 1992)

In a nutshell, the court held that serving drunk people more alcohol is dangerous and it is foreseeable that it can cause injury to innocent drivers on the road. Therefore, the court held that people who provide this alcohol can be held responsible. Further cases elaborated on the common law standard:

There, we held that a common law negligence claim could be maintained where the plaintiff alleged that the social host provided alcohol to an underage guest when the host knew or should have known that the guest was intoxicated and was going to drive a car shortly after consuming the alcohol. In acknowledging this common law claim in Hart, we stated that we were not creating a new cause of action but were instead merely allowing "established negligence principles" to be applied to the facts alleged. Id. at 306, 420 S.E.2d at 178. We stated that, under established common law negligence principles, a plaintiff must offer evidence of four essential elements in order to prevail: duty, breach of duty, proximate cause, and damages. Id. at 305, 420 S.E.2d at 177-78; see Lamm v. Bissette Realty, Inc., 327 N.C. 412, 395 S.E.2d 112 (1990).

Estate of Mullis by Dixon v. Monroe Oil Co., 349 N.C. 196, 201 (N.C. 1998)

One thing that the plaintiff's attorney may want to do is to make sure that the drunk driver either pleads guilty or is found guilty of drunk driving. While such evidence is not definitive of civil liability, it is admissible:

Jeffries pled guilty to the charges of running a red light and driving while impaired. However, HN4while evidence of a plea of guilty to a criminal charge is generally admissible in a civil case, it is not conclusive evidence of defendant's culpable negligence and may be explained. [***10] Grant v. Shadrick, 260 N.C. 674, 133 S.E.2d 457 (1963). Accordingly, we have reviewed all the evidence in support of and in opposition to plaintiffs' motion for partial summary judgment in order to determine whether Jeffries' explanation is sufficient to create a genuine issue of material fact as to whether he breached a duty to plaintiffs by running the red light and driving while impaired.

Camalier v. Jeffries, 340 N.C. 699, 707 (N.C. 1995)

Ultimately, Dram Shop and common law Social Host Liability can be complicated claims to pursue. If you have been injured by a drunk driver, make sure that you hire a good attorney. This will help protect your interests and more important hold the driver responsible for the injuries or wrongful death that he or she has caused.

How are nursing homes paid?

James Roane — Thu, 29 Mar 2012 18:10:00 GMT

From 1965 until 1998, nursing home facilities were paid on a cost-based reimbursement system by combining cost reports with the number of patient days. In 1998 payment was switched to Prospective Payment system, which is more of an acuity based system. Facilities perform a full assessment on each resident and compile the data using the Minimum Data Set (MDS). The needs of the residents, as determined by the MDS, is then converted to a Resource Utilization Group (RUG) score. Facilities are then paid Medicare funds based on this RUG score for the Medicare eligible residents. Medicaid funding is more of a cost-based payment system with partial adjustments made on acuity, but the states determine the bulk of the per diem rates.

The higher reimbursement for residents with a higher RUG score is supposed to be used for the increased staffing needs for more nursing and therapy services. This actually is what "Resource Utilization" means: that the facility will have to utilize more resources for the more acute residents. This isn't supposed to be an "acuity lottery" where a facility gets an increase in pay without a corresponding increase in staffing. For example, a facility can get paid $15,000 or more a month for a new Medicare patient. The facility can't just smile at their luck of getting a new partially paralyzed resident with multiple health conditions and pocket the extra money. In fact, if the nursing homes don't increase staffing for such patients they will begin to neglect their existing patients as they just can't take care of them all.

The federal government didn't just pull the RUG reimbursement rates amounts out of a hat. In 2006, the number of RUG categories was increased from forty-four to fifty-three to provide greater variety of scores and especially provide scores that were higher to accommodate the increased acuity level of residents. The trend is for patients to be discharged from hospitals earlier and moved into skilled facilities. Skilled facilities then get paid these higher RUG scores for traditional hospital provided care such as respiratory care, IV therapies, etc. The expense of such services exceeded what was expected by Medicare. So, the government decided to revamp the RUG system with a new version, RUG-IV and MDS 3.0. In order to develop RUG-IV, a large study was designed to re-evaluate staffing needs based on the scores.

NC Dram Shop Law adults

James Roane — Mon, 26 Mar 2012 14:05:00 GMT

In North Carolina, NCGS section 18B-120 and the subsequent sections address injury by drunk drivers that are under the age of twenty-one. The following sections address drunk driving by adults:

§ 18B-305. Other prohibited sales

(a) Sale to Intoxicated Person. -- It shall be unlawful for a permittee or his employee or for an ABC store employee to knowingly sell or give alcoholic beverages to any person who is intoxicated.

A violation of this section constitutes negligence per se, which means if you are able to prove knowledge and legal intoxication then the bar is liable. Clark v. Inn W., 89 N.C. App. 275, 365 S.E.2d 682, rev'd on other grounds, 324 N.C. 415, 379 S.E.2d 23 (1989). Even though the statute states "knowingly", the plaintiff must only allege and prove (1) that the patron was intoxicated and (2) that the licensee or permittee knew or should have known [emphasis added] that the patron was in an intoxicated condition at the time he or she was served. Harshbarger v. Murphy, 90 N.C. App. 393, 368 S.E.2d 450 (1988).

It is important to recognize that these Dram Shop laws establish a cause of action against the bars and seller of alcohol and not the drunk driver: Because N.C.G.S. § 18B-121 creates a cause of action against the permittee or a local ABC Board only, the theory by which the liability of the negligent driver is determined must arise from some other context, be it common law negligence, the Wrongful Death Act, or otherwise. As we have discussed, the pleadings in the present case do not allege such an alternate theory of liability. Because we have held that Defendants erroneously contended that N.C.G.S. § 18B-124 creates liability on the part of Ms. Lutz's Estate, the trial court did not err in granting summary judgment in favor of Ms. Lutz's Estate.

Green v. Fishing Piers, Inc., 714 S.E.2d 510, 514 (N.C. Ct. App. 2011)

To summarize, NCGS 18B-120 is the Dram Shop law for underaged drunk drivers and NCGS 18B-305 deals with adult drivers. These are claims against the bars only. Attorneys will need to claim general negligence and wrongful death against the drunk driver.

Generic drug dangers

James Roane — Thu, 22 Mar 2012 19:47:00 GMT

Recently, the New York Times had an article that addressed the lack of accountability for generic drug manufacturers:

NY Times article

The U.S. Supreme Court held that generic drug suppliers don't have the same disclosure and warning requirements that brand name drugs have. So, be careful when taking generic medications. The medication will be the same, but the labels and warnings will not. You should do your own research into the particular medication that you are taking.

Also, some legislators in North Carolina appear to be trying to provide immunity for drug companies for drugs that were FDA approved. Based on failures by the FDA in the past, this would be very dangerous for NC consumers. Here is a response to this bill:

NC Drug immunity?

How to find out nursing home staffing levels

James Roane — Thu, 22 Mar 2012 18:05:00 GMT

Facility information on staffing can be found through a variety of sources. The primary pre-suit source of information is the facility licensing file. Of course, you should never file suit without this file as it should help shed light on the true operators and owners of the facility. The licensing file will contain some staffing information such as the Form CMS-671. Form 671 is filled out by the facility and contains a breakdown of the number of hours for each staff member in the facility. The annual recertification survey will compile staffing only for the two-week period prior to the survey.

Don't simply accept the Form 671 numbers. In many cases, staff testify that they knew when N.C. Department of Health Service Regulation (DHSR, DHHS, DFS or simply "the state") was coming. Maybe, the facility is just guessing and trying to "time" the survey as all facilities must have a survey no more than fifteen months apart with the state average a maximum of twelve months.[i] Annual surveys may fall in regular patterns and the facilities start to clean up and add staff when they feel that a survey is imminent. Also, some nurses have testified that they stay in communication with other facilities. The surveyors may always inspect facilities in some sort of generally predictable order, and one administrator calls another and says "you are next." Therefore, the facilities narrow down the possible survey window. Finally, some staff have testified under oath that the facility is actually told when the state is coming. Staff numbers may temporarily increase, which is consistent with the disparity of what is reported during the survey with the Medicaid Cost Reports. During this two week survey window, staffing reports a 38% higher mean level of RNs as compared with the cost reports.[ii] Of course, all surveys are required by federal law to be unannounced, and the purpose is "it increases the probability that the surveys will observe conditions and care practices that are typically present."[iii] In practice, this doesn't always happen.

Aside from the Form 671 staffing, look at the Form 672 Census/Acuity, which should also be in the licensing file. The Census lists how many residents are independent, require assistance or are totally dependent. The Census will list the numbers of residents with catheters, bedfast, contractures, behavioral problems, etc. All of this information provides some details regarding the overall acuity levels of the residents. Of course, with increased acuity, facilities need increased staffing levels. Without the increased staffing, the overall acuity can continue to increase. So, look at the number of contractures, incontinent residents, the overuse of psychotropic drugs as all of these may indicate understaffing. The section for Skin Integrity will show how many have sores and how many residents had sores on admission. Do the math and subtract these numbers, and you can see how many residents developed sores while admitted. If this a high number develop sores, it could be evidence of failure to turn and position and under staffing. If you do find evidence of such nursing home abuse or neglect, call the attorneys at Roane Law.

The information contained on both Form 671 and 672 are forwarded to CMS and are reported on the CMS website at www.medicare.gov/nhcompare/ You can check this website search for particular facilities, or just search all facilities in that county so you can compare staffing and deficiencies among facilities. The website doesn't have the actual forms from the facilities. However, the staffing values are compiled from these forms. The Medicaid and Medicare Cost Report data is submitted by the facilities to the government for reimbursement purposes. Staffing information can be found in these reports, and these reports contain much more detail on costs and other financial information.

[i] CMS- State Operations Manual Chapter 7 Section 7205

[ii]"Comparing Staffing Levels in the Online Survey Certification and Reporting (OSCAR) System with the Medicaid Cost Report Data: Are Differences Systematic?" Kash, Hawes and Phillips. The Gerontologist. Vol. 47 Issue 4. (2007)

[iii] CMS- State Operations Manual Chapter 7 Section 7207.2 "All Surveys Must Be Unannounced", and penalties at Section 7207.4

NC Dram Shop Law

James Roane — Wed, 21 Mar 2012 13:36:00 GMT

North Carolina law regarding a bar, restaurant or nightclub's potential liability for the sale of alcohol to an underaged person and drunk driving can be found in NCGS 18B-120:

§ 18B‑121. Claim for relief created for sale to underage person.

An aggrieved party has a claim for relief for damages against a permittee or local Alcoholic Beverage Control Board if:

(1) The permittee or his agent or employee or the local board or its agent or employee negligently sold or furnished an alcoholic beverage to an underage person; and

(2) The consumption of the alcoholic beverage that was sold or furnished to an underage person caused or contributed to, in whole or in part, an underage driver's being subject to an impairing substance within the meaning of G.S. 20‑138.1 at the time of the injury; and

(3) The injury that resulted was proximately caused by the underage driver's negligent operation of a vehicle while so impaired. (1983, c. 435, s. 37.)

The permittee is the bar, restaurant or nightclub that served the alcohol. In order to prove a violation, the plaintiff will need to show:

§ 18B‑122. Burden of proof and admissibility of evidence.

The plaintiff shall have the burden of proving that the sale or furnishing of the alcoholic beverage to the underage person, as defined, was, under the circumstances, negligent. Proof of the sale or furnishing of the alcoholic beverage to an underage person, as defined, without request for identification shall be admissible as evidence of negligence. Proof of good practices (including but not limited to, instruction of employees as to laws regarding the sale of alcoholic beverages, training of employees, enforcement techniques, admonishment to patrons concerning laws regarding the purchase or furnishing of alcoholic beverages, or detention of a person's identification documents in accordance with G.S. 18B‑129 and inquiry about the age or degree of intoxication of the person), evidence that an underage person misrepresented his age, or that the sale or furnishing was made under duress is admissible as evidence that the permittee was not negligent. (1983, c. 435, s. 37.)

Essentially, it is a general negligence standard with certain factors such as a fake ID or the bar's procedures for preventing underaged drinking will effect the case. One of the main defenses by these bars is claiming that the patron didn't look drunk and they had no way of knowing his level of intoxication. In order to defeat this defense, the attorney will need to analyze the blood alcohol content of the patron. A very high level of blood alcohol should be some evidence that intoxication would be evident. Also, the lawyer can get a copy of the bar tab. Sometimes, "I just had one beer" actually turns out to be five beers. The lawyer will usually need to file suit and perform some discovery to pursue this type of case.

§ 18B‑123. Limitation on damages.

The total amount of damages that may be awarded to all aggrieved parties pursuant to any claims for relief under this Article is limited to no more than five hundred thousand dollars ($500,000) per occurrence. When all claims arising out of an occurrence exceed five hundred thousand dollars ($500,000), each claim shall abate in the proportion it bears to the total of all claims. (1983, c. 435, s. 37.)

In a North Carolina Dram Shop case, the limit on damages under the statutory claim is $500,000. Therefore, it may be advantageous to pursue a common law claim instead. The statute of limitations for this claim is one year. So, if you have a drunk driving Dram Shop case, contact an attorney right away.

Nursing Home NC Staffing Requirements

James Roane — Thu, 15 Mar 2012 18:00:00 GMT

All nursing home staff, defendants and most attorneys state that the minimum staffing requirement in North Carolina is 2.1 nursing hours per patient day (nhppd) based on the administrative code.[i] However, this is overly simplistic and only addresses one subsection of the code. The other subsections provide further instruction. For example, according to subsection (a) the facility must provide licensed nursing personnel (RNs and LPNs) sufficient to perform needs assessments, care planning and supervisory functions. In many cases, assessments are not performed in a timely fashion, care plans aren't updated and the CNAs testify that they rarely have any instruction or help from licensed nurses which is potential evidence of failure to meet this code.

According to subsection (b), "the facility shall provide other nursing personnel sufficient to ensure that activities of daily living, personal care, delegated nursing tasks and other health care needs, as identified in each patient's plan of care, are met." Insufficient staff to perform ADLs, or to provide personal care are at the heart of virtually every nursing home case. These first two sections establish the actual standard for staffing in North Carolina.

The third subsection (d), is what the nursing home industry argues "trumps" all of the preceding rules. Subsection (d) states "daily direct patient care nursing staff, licensed and unlicensed, shall equal or exceed 2.1 nursing hours per patient per day." This provision doesn't say "however, if the nursing home provides 2.1 nhppd" then this is sufficient staffing. This is just a floor amount, a minimum. No matter what the acuity levels of the residents, the facility must provide this amount of staff. So, even if the residents can all get up, dress, eat, bath and dance the jig unassisted, the facility must still provide this minimum. Once, I deposed an ADON who told me that 2.1 nursing hours is the most that they can provide as a matter of law, and that she was told this by "corporate." Apparently, she had fully drank the corporate Kool-Aid or was otherwise misled by management. In my case, it appeared to be the latter. She looked fairly betrayed when I showed her the actual language of the code. Regardless, for nearly every skilled facility, 2.1 nhppd is not enough staff to meet the licensed staff requirement of subsection (a) nor the ADL and personal care requirements of subsection (b), and the 2.1 nhppd minimum doesn't change the actual standard in North Carolina.

Section (2) requires a registered nurse for at least eight consecutive hours a day, seven days a week. The director of nursing may be counted as meeting the requirements for both the director of nursing and patient staffing for facilities with a total census of 60 nursing beds or less. Watch this distinction as most of the really bad facilities have more than 60 beds, and some will try to add the DON into direct care hours. Since the DON is salaried, I have even seen them try to add in the hours of a DON who was out on medical leave but still getting paid. You will need to look at vacation pay or medical leave of direct care staff carefully. Section (3) excludes staff not actively involved in direct patient care. So, the maintenance man doesn't count, and neither do administrators or other management, and non-clinical staff. Also, watch CNAs who are "in training" as they don't qualify. Understaffing is the number one cause of nursing home abuse and neglect in Greensboro and other areas in North Carolina. If you suspect such abuse, call the attorneys at Roane Law. We will talk to you for free and try to help if we can.

[i] 10A N.C.A.C. 13D.2303 (2010).

Nursing Home Federal Staffing Requirements

James Roane — Thu, 08 Mar 2012 18:54:00 GMT

How much staff is needed in a skilled nursing facility to provide reasonable care? Of course, the specific answer depends on who you ask. Since "he who pays the piper calls the tune" and federal and state governments provide the bulk of reimbursement to skilled facilities, facilities must follow some basic governmental rules regarding the quality of care. Medicare and Medicaid reimbursement for skilled facilities began in 1965. Growing concerns of poor resident care led the federal government to ask the Institute of Medicine (IOM) to study the issue of skilled nursing home care and the government funds. In 1986, the IOM produced a report "Improving the Quality of Care in Nursing Homes". The IOM report suggested stronger governmental oversight and some basic standards that would apply to all facilities receiving these funds.

In 1987 the government attached some strings to such funds by the passage of the Nursing Home Reform Act. This act was initially a separate bill, but was then rolled up into one massive piece of legislation called the Omnibus Budget Reconciliation Act of 1987 (OBRA).[i The very first sentence under Residents Rights Subsection .10 states "The resident has a right to a dignified existence..." Also in Subsection .15 Quality of Care, the act states "(a) Dignity. The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." A dignified existence surely means that staff will answer call bells, help to feed and change residents in a timely fashion and provide basic care. However, these complaints of nursing home neglect are very common in Greensboro and other communities.

As for a specific staffing provision, Subsection .30 requires that, "the facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident, as determined by resident assessments and plans of care." First, this provision is mandatory as it says "must have sufficient staff." Second, it refers to the "highest" state of well-being. Third, there is what appears to be a balancing provision of "practicable." While one-on-one care would most likely provide the highest level of well-being, it isn't feasible.

All of the above establish general requirements, and the primary specific federal staffing requirement is also found in Subsection .30: the facility must use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week, and a full time Director of Nursing. So, look at the staffing documents when you walk into a nursing home. The number of staff and schedules may be posted. Understaffing is the number one cause of nursing home abuse. Don't stand by and let that happen. If you suspect nursing home abuse call the attorneys at Roane Law. We will give you free advice to at least help give you some peace of mind.

[i] 42 C.F.R Section 483