Attorney Blog

Secretly Enacted Federal Rules Seek to Hamper Nursing Home Residents' Claims

jrmani@maniellislayne.com (Blog Author)9407 — Wed, 25 Feb 2009 08:00:00 EST

In his final days as the President, Gorge W. Bush, secretly enacted federal rules which appear to hamper the public's ability to present valuable evidence of abuse and neglect in nursing home trials. The former President enacted a rule that unilaterally declares state investigators and regulators as "federal employees" as it relates to their investigations of allegations of abuse and neglect in nursing homes. As "federal employees" these State investigators and regulators will not be able to testify against nursing homes in civil trials concerning resident abuse and neglect.

Typically, families who suspect abuse or neglect in a nursing home contact State Investigators and/or Regulators to lodge complaints surrounding the care of their loved ones. These State Investigators and Regulators investigate the allegations, and issue reports detailing their findings. Often, these reports are the evidence that solidify a family's resolve to contact a private lawyer to assert a claim against the negligent nursing home. Moreover, these State Reports stand as the basis for regulatory fines against these bad nursing homes.

Thanks to the former President, victims of nursing home abuse CANNOT even use independent, State Investigations to assist the prosecution of their claims. Think about it – The State can investigate a nursing home and unequivocally determine that it has been abusing its residents, and that resident CANNOT use that evidence in Court!

Despite the former President’s giveaway to the multi-billion dollar nursing home industry, I urge all people with family in nursing homes to report any suspected abuse to State Regulators and/or private nursing home attorneys. In West Virginia, you may report allegations of nursing home abuse and/or neglect to the State Office of Health Facility Licensure & Certification at (304) 558-0050.

Kanawha City Nursing Home Resident Killed

jrmani@maniellislayne.com (Blog Author)5714 — Mon, 27 Oct 2008 08:00:00 EST

The Charleston Gazette is reporting that an elderly Charleston man, George King, was killed this weekend when he was hit by a CSX train in the Kanawha City section of Charleston, West Virginia. (click here for link to story). While the untimely death of any individual is a tragedy, this situation is especially heartbreaking.

Mr. King was a resident of Heartland of Charleston, a nursing home located in Kanawha City, Charleston, West Virginia. Mr. King's family entrusted their loved-one to Heartland expecting that his well-being would be protected. It certainly appears that Heartland did not live up to its obligations.

From what the paper has reported, it appears that Mr. King "went missing" from Heartland some time on Saturday. In the nursing home industry this is called an "elopement." It is not uncommon for the elderly to become confused while in a nursing home and wander off. It is the nursing home's absolute duty to safeguard their residents and make sure that the premises are secure and that confused residents cannot slip outside and into potential danger. In this instance, it is clear that Mr. King walked out of Heartland and onto the railroad tracks which are less than 50 yards from the home.

The article indicates that Heartland "intends to do an internal investigation" of the matter. That is like the fox guarding the hen house. Mr. King's family must demand a full scale investigation of the incident - starting with a call to the West Virginia DHHR's Office of Health Facility Licensure and Certification (OHFLAC) and then to a qualified lawyer.

Mani Ellis & Layne is a law firm located in Charleston, West Virginia. The lawyers of Mani Ellis & Layne have handled countless cases involving nursing home abuse and neglect throughout West Virginia. For a free consultation concerning nursing home abuse and neglect call 888-720-1001 or 304-720-1000 or visit us at our website www.wvnursinghomeabuse.com.

Smoking Ban

jrmani@maniellislayne.com (Blog Author)5584 — Wed, 22 Oct 2008 08:00:00 EST

In recent months, bar and resturant owners in Kanawha County, West Virginia, have been up in arms about the county-wide indoor smoking ban. Their argument: the indoor smoking ban is keeping smoking patrons from utilizing their establishments becasue they cannot smoke indoors.

While we feel sorry for the owners of these establishments, the simple fact of the matter is that smoking is a dangerous, deadly habit that disables people and result in the expenditure of BILLIONS of healthcare dollars per year. These are dollars that are ultimately borne by you and me - honest taxpaying citizens. These are also dollars that come out of already underfunded government programs like Medicare (healthcare for the elderly) and state Medicaid programs.

What is more, the overwhelming weight of the evidence points to the fact that secondhand smoke is as dangerous to non-smokers as it is firsthand to the smoker; the smoker isn't just killing themselves, they are slowly killing those around them.

Science has proven that smoking causes heart disease, COPD, emphysema, high blood pressure, vascular diseases, strokes and numerous other medical conditions which can lead to an otherwise healthy person becoming fully disabled. These disabilities lead directly to productive members of society not being able to work or otherwise obtain gainful employment, increased healthcare costs and applications to government entitlement programs like social security.

It is unfortunate that the smoking ban is affecting some businesses negatively and that it is inconvenient for smokers. However, one must keep in mind that in the end, stamping out smoking will lead to healthier citizens, lower healthcare costs and in the end, lower taxes for everyone.

Text Messaging and GPS Devices Are Serious Driving Distractions

belayne@maniellislayne.com (Blog Author)5199 — Thu, 09 Oct 2008 08:00:00 EST

     How often do you pass a driver on the road who has one hand on the wheel and one hand on their cell phone? With the recent surge in techno gadgets aimed at providing the driving public more fingertip conveniences while on the road, there has also been a corresponding rise in serious injuries and deaths related to car wrecks caused by technologically distracted drivers. While cell phones have been a consistant driver distraction for over a decade, recently, other high-tech eye-catchers such as text-messaging, cell phone cameras, global positioning systems (GPS), satellite radios, MP3 players, and e-mail, have also began to contribute to street and highway accidents, injuries and deaths.

     Interestingly, researchers have noted that these devices have "intergenerational appeal." Meaning, young and old drivers alike often utilize some or all of these technologies while driving. Although, it has been noted that these technologies are used more pervasively by younger drivers. This alone is cause for concern since younger drivers are often associated with riskier and deadlier driving behaviors than older adults. In a recent edition of TRIAL, Journal of the American Association for Justice, attorney Robert L. Sachs Jr., cites a recent case in which five newly graduated females from Fairport High School in New York died when their SUV veered in front of an oncoming tractor trailer.

     According to Sachs, press reports stated that a text message was sent from the driver's phone two minutes before the crash and that response was received less than a minute before a 911 call to report the crash was made from a vehicle following the women. Sadly, all of the occupants in the car died in the crash. The American Automobile Association recently studied th problem and found that 13 percent of teen drivers admitted to text-messaging while driving, while AAA has reported the number may be as high as 46 percent. (See Am.Auto. Assn., Teen Risky Driving Habits Include Text Messaging Behind the Wheel (July 10, 2007).

     Currently, state laws governing the use of high-tech devices while driving have been slowly evolving and developing as the problems caused by their usage behind the wheel become known. Many states now regulate cell phone use in a multiplicity of ways. Some completely prohibit the use of cell phones while driving, some mandate the use of hands-free devices while using cell phones, while others list age categories or certain occupations who are prohibited from driving under the influence of cell phones.

     The consequences of teen drivers driving with distractions are quite scary. Not to mention, can you imagine the catastrophe that could arise from a tractor trailer driver who would become distracted by these devices? Many commercial or Over The Road (OTR) truckers utilize a multiplicity of communication devices that are available within their cab such as e-mail, voice mal, satellite load tracking and other fleet management tools. Some governmental authorities have even began allowing truckers to electronically log their miles through a satellite communication system within the tractor.

     As you can see, there are a myriad of dangers presented by distracted drivers. As a community, we need to be aware of the hazards of these devices while driving and take a proactive part in encouraging those around us not to utilize them while we are driving. Let's not wait until serious injury or death visits our doorstep to take action against a very preventable problem.

     If you have been seriously injured by a technologically distracted driver, contact The Law Firm of Mani Ellis & Layne, in Charleston, West Virginia, to discuss your legal options.

WV Seeks to Lower Blood Alcohol Limit for Boaters

jrmani@maniellislayne.com (Blog Author)3396 — Wed, 09 Jul 2008 08:00:00 EST

The West Virginia Division of Natural Resources will push to lower the legal blood alcohol limit for those operating boats in West Virginia from .10 to .08. This would reconclie the law with the legal limit for operating a motor vehicle in West Virginia. The proposed changes will be presented to the Legislature during the 2009 regular session. (For more information on this issue follow this link to an article in today's Charleston Daily Mail)

I think this is a good thing. Every year, thousands of people are killed or seriously injured in drunk driving and drunk boating accidents. Statistics show that 21% of all boating accidents are attributable to alcohol. Hopefully, the proposed changes to the law will make the waterways of West Virginia safer for you and your families.

Mani Ellis & Layne, PLLC, has handled numerous claims arising from boating / personal watercraft accidents in West Virginia. If you or your family have beeen injured in a boating accident please call Mani Ellis & Layne, PLLC, to discuss your legal rights and whether you may have a claim for injuries.

Power Rates to Go Up Again

jrmani@maniellislayne.com (Blog Author)3232 — Fri, 27 Jun 2008 08:00:00 EST

Virtually all West Virginians will see an increase in their power bills in the coming months.

The Public Service Commission (PSC) has approved yet another rate increase for American Electric Power's subsidiary companies Appalachian Power and Wheeling Power. The power companies sought this rate increase to recoup monies they have expended on coal. In recent months, the cost of coal has risen precipitously. What does this mean for the average consumer? A $7.33 average monthly bill increase.

Unfortunately, rising power costs are a sign of the times. Each and every one of us has felt the pain of refueling our vehicles. Gas now hovers at over $4.00 per gallon and will likely go up from there. Now consumers are getting hit at their homes.

There are many complex reasons for the rising costs. However, it can be boiled down to basic economics - increased demand for raw energy sources (coal, oil, etc) leads to rising overall energy costs.

I don't pretend to be an expert on energy policy or how to fix this problem. However, pure common sense dictates that the cost of energy will continue to rise and the only thing that we as consumers can do to combat this problem is to be more economical in our consumption of energy. Like many things in life, the shift to conservation will be difficult and a long process but with a little commitment and even little changes (turn the AC from 70 to 72 in the Summer, etc) we can collectively make an impact.

Fitness Program Aids Traumatic Brain Injury Patients

belayne@maniellislayne.com (Blog Author)3224 — Thu, 26 Jun 2008 08:00:00 EST

Sadly, more than 7,000 Americans suffer from traumatic brain injury. The Centers for Disease Control and Prevention, tell us that a brain injury is caused by a blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Symptoms of traumatic brain injury may manifest themselves both physically and mentally. Specifically, traumatic brain injury symptoms may include: dizziness, headache, confusion, seizures, personality change, vomiting, bad taste in your mouth, loss of concentration, and loss of coordination and numbness. Too often, such injuries are acquired through accidents at work in labor driven occupations such as construction, coal mining, heavy equipment operation and blasting sites. All too often, car and 18 wheeler accidents produce their share of traumatic brain injuries. And, recent data suggests that there is a growing incidence of traumatic brain injury victims returning home from service in Iraq and Afghanistan.

I was heartened to read a recent article in the Charleston Gazette regarding recent advancements in the treatment of traumatic brain injury patients. According to the article, San Francisco based company, Posit Science, has developed an in-home computerized "Brain Fitness Training Program," with the assitance of medical professionals, that is designed to improve memory, listening skills and cognitive functioning for traumatic brain injury patients.

Interestingly, the program is available free-of-charge through the Easter Seals Society. The program lasts eight weeks, but as mentioned, can also be completed at home. It is suggested that participants spend about an hour a day five days per week working with the program. Early research suggests that the program has improved the memory of traumatic brain injury patients who have utilized the program.

I think it's fantastic that veterans groups, including West Virginia based Thanks! Plain and Simple, a nonprofit veterans advocacy group based in Cross Lanes, West Virginia, has taken the inititative to raise awareness regarding the issue of traumatic brain injury amongst veterans. Too often, veterans, disabled workers, car accident and workplace injury victims are ashamed of the "negative stigma" and stereotypes that are created by others when someone speaks out or seeks assistance for their traumatic brain injury.

Through my work as an attorney, whether that has been through assisting disabled West Virginians seeking Social Security benefits or through my work assisting traumatic brain injury victims to receive fair compensation for car accidents, truck accidents, motorcycle accidents, and workplace injuries, that were no fault of their own, I have personally witnessed the life altering effects of this horrific illness. We at Mani Ellis & Layne, PLLC, applaud the efforts of the technology and medical community working to improve the daily lives of all those who suffer from traumatic brain injury.

SUV Roof Strength is Seriously Lacking

Wed, 02 Jul 2008 08:00:00 EST

USA TODAY reports that safety advocates have been right all along; many SUVs' roofs are not strong enough and result in unnecessary deaths in rollover crashes.

The Insurance Institute for Highway Safety (IIHS) has released a report which suggests that 200 deaths could be prevented each year if SUV manufacturers would simply improve the strength of SUVs' roofs. IIHS President Adrian Lund has stated "strengthing a vehicle's roof reduces injury risk and reduces it alot."

The IIHS estimates that SUVs with roofs as strong as the top-rated Nissan Xterra are 57% less likely to be seriously injured in the event of a rollover automobile crash than those driving the Jeep Grand Cherokee (1999 - 2004) the Chevy Blazer (1996 - 2004) or the bottom-rated Ford Explorer (1996 - 2004).

If you or one of your loved ones has been injured in a roll-over automobile accident in West Virginia, please contact the attorneys of Mani Ellis & Layne, PLLC, to discuss your potential claims. Mani Ellis & Layne, PLLC, has years of experience handling automobile accident cases in West Virginia and the contiguous states. As always, with Mani Ellis & Layne, PLLC, you will receive "Powerful Representation and Personal Care."

West Virginians who are receiving Social Security Disability or SSI Must File Tax Returns To Receive Federal Tax Rebate Money

Thu, 26 Jun 2008 08:00:00 EST

West Virginians who are currently receiving Social Security Disability, SSI, or Veterans Affairs benefits must file a federal tax return in order to receive a tax rebate from the federal government. A recent article estimates that nearly 50,000 disabled and retired West Virginians still have not filed their tax returns for 2007. The good news is that you have until October 15, 2008, to file the return and become eligible for between $300 to $600 rebate check that is not taxable.

According to Internal Revenue Service (IRS) statistics, cited within the article, 78 percent of retirees, disabled individuals and disabled veterans in West Virginia still need to complete the paperwork to see if they are eligible for a free check from Uncle Sam. Further, it is estimated that 5,600 people in Kanawha County have not filed the needed return.

The IRS has undertaken an outreach program to get the word out to disabled workers, veterans and retirees in West Virginia to let them know that they must file a return in order to become eligible for the economic stimulus rebate.

If you live in West Virginia and need help with the forms, you can call West Virginia's IRS offices in Charleston, Bridgeport, Parkersburg, Huntington, Martinsburg or Sophia. The offices are open Monday through Friday, from 8:30 a.m. to 4:30 p.m. You can also contact the IRS toll free (800) 289-1040.

Arbitration Clauses Erode Patient Rights in Nursing Homes

Wed, 18 Jun 2008 08:00:00 EST

Placing a loved one in the care of a nursing home is an extremely emotional and stressful process. Due to the stress and emotions involved in this decision, you may not be in the position to understand and comprehend some of the long and intimidating documents placed before you.

One of the documents now included in many admission agreements is an arbitration clause. While the document may appear innocent enough, it actually strips you of many of the rights you have in the event the nursing home abuses, neglects, or kills your loved one. Some of the drawbacks to arbitration provisions are the following: 1. arbitrations are expensive; 2. arbitrations severely limit your ability to obtain evidence in possession of the nursing home; 3. arbitrations are usually confidential; 4. arbitration clauses sometimes require hearings in inconvenient venues; and 5. arbitrations limit the remedies available to claimants (i.e. no injunctive relief, no punitive damages, etc.)

Prior to signing a nursing home admission agreement, review the documents carefully. Be on the lookout for arbitration agreements and proceed cautiously. If you are forced to agree to an arbitration clause as a condition of care, you may want to choose another home. While you may be focused on obtaining care for your loved one, based upon the high number of resident abused and neglected everyday, you also need to think of your legal options down the road.

Attached is an article addressing arbitration agreements and eroding patient rights in nursing homes. Prior to signing an arbitration agreement and admitting a loved one to a nursing home, call the attorneys of Mani Ellis & Layne to learn more about your legal rights.