Articles Posted in Patient Safety

A recent investigation by The Oregonian found “that county employees had received reports of serious neglect or abuse” at what the newspaper describes as the city’s “premier mental health facility,” the Unity Center for Behavioral Health in Northeast Portland. These reports began to come in “within months of its opening in 2017.” In 16 cases “a police report should have been filed but none was found.”

This scandal fits a wider pattern that I have been writing about for several years. In day care centers, prisons and, now, mental health facilities people who have a legal obligation to watch for abuse are failing to do so. As I noted in a blog more than a year ago, laws that we often think of as focused on child abuse are, in fact, designed to protect vulnerable people more generally. Section 419B.005 of Oregon’s legal code sets standards for care and extends these to all forms of abuse and neglect. This state statute compliments 42 USC 1983, part of the federal legal code. Together, they make protection from abuse a civil right.

It offers little reassurance that once the cases were uncovered a spokesman for the Multnomah County Sheriff’s office told The Oregonian “thankfully that number (16) is relatively low compared to what we fear we may find.”

A recent story published by Courthouse News Service details a legal case in Arizona that deserves to be making headlines nationwide. There has been a lot of media coverage over the last few years of the abuses of the private, for-profit prison industry. The Arizona case, however, highlights what can go wrong even when the state is still in charge. It also reminds us of the critical role our courts play in overseeing those with power and ensuring they do their jobs properly and humanely.

In Arizona, according to the news service, the state retained control of the prisons that are the focus of the lawsuit, but contracted out medical services to “Corizon, one of the nation’s largest prison health care providers.” Citing reporting by local NPR affiliate KJZZ, the news service writes that a Corizon staff member told a doctor working with the company part-time “to cancel a pending infectious disease consultation for a prisoner” because the consultation was past due and the company risked being fined for its slow response. The whistleblower also reported instances of critical medication, such as insulin, being withheld from prisoners and of her superior ordering her not to treat an inmate who had suffered a heart attack. She alleges she was told to spend less time with patients and focus on paperwork instead.

This case raises serious political issues, reminding us that the ‘savings’ offered by privatizing public services can sometimes be illusory. It also raises an equally serious civil rights issue. As I have noted in the past, federal, and many state, laws require that inmates receive a level of health care comparable to what they could expect to receive were they free. Failure to provide that level of care is a civil rights issue as defined in 42 US Code 1983. This statute protects anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” by the government at any level. Crucially, that responsibility extends to the government’s agents – in this case, private contractors. Corizon is a private company, but because it is working for the government, the government’s obligation to provide proper medical care extends to the company itself. Corizon, in legal terms, becomes a “state actor” because they are under contract to, in this case, Arizona to treat people who are, ultimately, in the state’s care.

A recent article in The Oregonian documented efforts by Disability Rights Oregon to convince “the Multnomah County Sheriff’s Office to transfer jail inmates undergoing mental health crises to the city’s new emergency psychiatric care center if needed.” As the article outlines, the Northeast Portland facility recently opened, offering “a long-awaited alternative to having police take people in crisis to regular hospital ERs.”

As the newspaper reports “a no-guns policy and other logistics make the request a tough sell.” What it does not lay out, however, is an especially strong legal argument for using the Unity Center for Behavioral Health: prisoners’ rights.

As I have written in other contexts, one of the most important legal tools for ensuring that people held in custody are treated in a humane way that respects their rights is 42 USC 1983. This allows individuals to sue when the government deprives them of any of the “rights, privileges, or immunities secured by the Constitution and laws.” In plain English: it offers a mechanism for people who have been mistreated by government at any level (local, state, federal) to have their day in court and obtain justice.

The sentencing this week of a former Kaiser Permanente nurse on charges of sexually abusing five women under his care should remind us all of the responsibilities hospitals, nursing homes, other care facilities and their staffs have toward their patients.

According to The Oregonian the 38-year-old man “pleaded guilty in Washington County Circuit Court to attempted second-degree kidnapping, second-degree invasion of personal privacy, third-degree sexual abuse and computer crime.” He was sentenced to two-and-a-half years in prison and will be required to register as a sex offender.

The newspaper notes, however, that in addition to the criminal phase of the trial, which is now over, two of the man’s victims “have since filed suit against Kaiser Permanente – where he worked for two years – alleging negligence by the medical company and sexual abuse and exploitation.” These charges are both significant and serious. Hospitals, nursing homes and other care facilities have an obligation to ensure that their staff are interacting with patients in a proper manner, and to report any suspected abuse immediately (see the Oregon Department of Justice and Oregon Department of Human Services links below for more information).

The decision by Portland police to charge a 34-year-old nursing assistant with the rape of an 87-year-old nursing home patient is drawing new attention to sexual assault issues in Oregon nursing homes, hospitals and other facilities that care for the elderly.

According to a recent article in The Oregonian, a Portland man “is charged with first-degree rape and first-degree unlawful sexual penetration. He… is being held in the Washington County jail with bail set at $250,000.” The paper adds that the alleged rape was not the first time the suspect had been brought to the attention of police: they received a complaint about him back in June in reference to the assault of a 94-year-old woman at the same facility “but couldn’t substantiate it at the time.” Now, the paper reports, quoting the Washington County Sheriff’s office, the accused could also face charges in that case. Law enforcement authorities tell the paper they believe other victims may also come forward.

The arrested man “was licensed as a certified nursing assistant in February 2015 and has no history of discipline. He graduated from the Caregiver Training Institute in October last year, according to records,” The Oregonian reports.

The Oregonian reports that a Beaverton nurse was allowed to continue working with patients while under investigation for sexual misconduct on the job and allegedly committed a similar offense during that time. The incident, if the facts are as reported, raises serious questions about how the nurse’s employer, Kaiser Permanente, deals with abuse allegations among its employees. The result is a case which concerns both hospital malpractice and sexual assault.

According to the newspaper the 37-year-old North Plains man was indicted earlier this month “on one count of first-degree criminal mistreatment, three counts of invasion of personal privacy, two counts of computer crime and four counts of third-degree sex abuse, police said. The charges relate to three alleged victims, but detectives have identified two more and are investigating their claims.”

The claim that the man was allowed to keep working is particularly striking when one considers how quickly the case has moved. Far from being something that has dragged on for many months or years, The Oregonian reports that “police first started investigating (the nurse) on Jan. 28 after a woman reported that he made sexual statements to her and sexually touched her during a visit to the Beaverton clinic two days earlier.” In other words, this case has gone from initial allegations to a wide-ranging indictment in about nine weeks – a case of the criminal justice system moving fairly quickly. Despite that, however, it is hard to imagine another workplace context where an employer would regard it as OK to keep an employee accused of sexual assault in a position to recommit the alleged offenses.

Following up my blog last month about the scandal and abuses at the Give Us This Day foster care center I am pleased to report that the Oregon legislature is making progress to address the important issue of injuries to children in Oregon’s foster care system.

As reported recently by The Oregonian, the Senate’s Human Services Committee has unanimously approved SB 1515 under which “Oregon’s foster care officials would have to produce public reports listing confirmed findings of abuse and neglect every three months.” The drive for this legislation was spurred by the scandal at the now-shuttered Give Us This Day facility which, the newspaper writes, is accused of misusing more than $2 million of public funds even as it “tolerated more than a decade of child abuse.”

The key thing to remember is that this scandal is not about one particular center, but, rather, about the entire way foster care is handled by the government here in Oregon and how much insight the public ought to be able to have into both the state’s actions and the providers with whom it works.

This blog often highlights things that go wrong – instances of negligence and irresponsibility at the end of which someone gets hurt and our legal system is called upon to offer justice, and some measure of solace, to victims and their families. An article that appeared in The Oregonian this week, however, is a reminder that the opposite of recklessness and negligence lies in proper training, having proper equipment and displaying professional responsibility.

The story that brought all this to mind concerns a Southeast Portland man whose life was saved on board an airplane last April when he suffered a heart attack while on a flight from Portland to Dallas. According to the newspaper the man’s wife became worried when she found him suddenly looking gray and acting unresponsive in the seat next to her. The woman’s “distress got the attention of those around her” the paper reports. Within moments a doctor and nurse, both from the Oregon Health and Science University Hospital but who were traveling separately, sprang to the man’s aid as flight attendants rushed to get the portable defibrillator that is now standard equipment on most commercial aircraft.

The doctor managed to revive the patient using hands-only CPR, the paper reports, with the patient showing signs of life just as the defibrillator was being activated. The doctor sent word to the pilots that the plane needed to land as soon as possible, leading to an emergency stop a short time later in Salt Lake City. As paramedics removed the man from the aircraft fellow passengers applauded.

Following up a story I wrote about earlier this week, today’s New York Times reports that a Los Angeles jury has “ordered Johnson & Johnson to pay more than $8.3 million in damages… in the first of more than 10,000 lawsuits pending against the medical products maker” and its subsidiary, DePuy Orthopedics.

The lawsuits stem from allegations that DePuy knew of problems with its all-metal Articular Surface Replacement (ASR) hip implant long before the product was formally recalled in 2010, yet failed to act.

Of key interest for unsafe medical product victims here in Oregon or elsewhere are some of the legal technicalities of the jury verdict. According to the Times the jury award, which was announced Friday, does not include punitive damages because the jury found that DePuy “did not act with fraud or malice.” As the paper goes on to explain, however, it is not immediately clear how this will impact the thousands of other ASR-related legal actions. Though the article does not say so, this is partly because today’s case was decided by a state court in California. Different courts in other cities or states may view the matter differently, and state laws on medical product liability also vary from place to place. Another ASR-focused trial is scheduled to begin next week in Illinois. All that said, it is important for anyone suffering from what they believe to be an ASR-related injury to understand the details of the California jury’s award. According to the Times the jury ordered Johnson & Johnson to pay the plaintiff, a former prison guard from Montana, “$338,000 to cover his medical expenses. It also ordered him to be paid $8 million to cover his pain and emotional suffering.”

An editorial published last month by the New York Times raises important questions about the legal and moral responsibility medical device manufacturers have, or ought to have, concerning their products.

The newspaper focused on all-metal hip implants in general and the actions of DePuy Orthopaedics in particular. DePuy is a division of pharmaceutical and medical supply giant Johnson and Johnson. The paper writes that “about 93,000 patients around the world” received DePuy’s all-metal Articular Surface Replacement (ASR) model hip implant until it was recalled in 2010. However, the paper notes, “documents show that as early as 2008 DePuy executives were told by a number of surgeons, including its own consultants, that the device appeared flawed.” The article goes on to note: “That was never disclosed to doctors who were putting the device into patients, nor were other unfavorable internal studies.”

In response DePuy’s president wrote to the Times this week to take issue with the editorial, noting that the ASR had been approved by federal regulatory authorities and that when data indicated that numerous patients were requiring early replacement of their implants the company “recalled the product and immediately supported patients with a reimbursement program for their medical costs.”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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