Ambulance Driver Charged with Homicide in Death of Nursing Home Resident

McKnight's reports that the New York Attorney's General office has indicted a former medical transport driver for criminally negligent homicide related to the death of a nursing home resident.  

Driver Juan Garcia was working for Maeleen Ambulette Transport Inc. while transporting an elderly nursing home resident back to the facility from a dialysis appointment, when he came to an abrupt stop. The resident apparently was thrown from her wheelchair in the August 2010 incident. Garcia, 49, has admitted he had not buckled the resident's seatbelt, according to the attorney general's office.

Even though a certified nursing assistant in the ambulette asked Garcia to take the resident to the hospital, he proceeded to drive to the Gold Crest Care Center, the charges state. The resident subsequently underwent surgery for a fractured hip and died about a month later from complications.

“Had [Garcia] taken the most basic safety precautions, this vulnerable nursing home resident would not have died in this horrific way,” Attorney General Eric T. Schneiderman stated.  Garcia was arraigned in Bronx County Supreme Court and released on his own recognizance, according to Schneiderman's office. He faces up to four years in prison if convicted.

Debt Owed to Nursing Home Is Dischargeable in Bankruptcy Court

A bankruptcy court rules that a nursing home cannot claim debt owed by the husband of a nursing home resident to the nursing home is nondischargeable as a domestic support obligation. In re Langan (Bankr. Dist. S.D., Nos. ADV-13-3003, BR 13-30001, Oct. 18, 2013).

Anna Langan died owing debt to the nursing home that provided her care.  The nursing home sued Mrs. Langan's husband, Francis Martin Langan, and Mr. Langan settled, agreeing to pay the nursing home $28,000. The settlement provided that Mr. Langan would not file for bankruptcy within 91 days following the nursing home's receipt of the settlement payment. Mr. Langan filed for bankruptcy one month later.

The nursing home filed a claim with the bankruptcy court, seeking a determination that its claim against Mr. Langan is nondischargeable debt. The nursing home alleged that Mr. Langan failed to pay for his wife's care even though he had assets to do so. Under bankruptcy law any debt "for a domestic support obligation" is exempted from a debtor's general discharge. Mr. Langan asked the court to dismiss the nursing home's claim.

The United States Bankruptcy Court, District of South Dakota, grants Mr. Langan's motion to dismiss, holding that the debt is not exempt from discharge. According to the court, because the nursing home "is not [d]ebtor's spouse, former spouse, or child, and the debt did not arise from a divorce or separation agreement," the debt does not fall under the "domestic support obligation" exception from discharge.

For the full text of this decision, click here.

Mishandling of Nursing Home Trust Accounts a Growing Problem

Many nursing home residents have have "resident trust funds" or "personal accounts" managed by the facility. It may be that the residents have no family members or family members do not want the responsibility, or the nursing facility prefers to manage the resident’s income. Recently, USA Today did an investigative report in which 1,500 facilities have been cited for mishandling of funds in such resident trust accounts. Most of the deficiencies were related to failing to pay interest on the money held, inadequate accounting, or failure to give residents sufficient access to their money. However, there were egregious cases where funds were misappropriated by those who were intended to protect them. Go here to read the full article.   

The USA Today article explains the problem, describes specific examples of account misuse, and provides some practical solutions to  minimize the risk of loss associated with these accounts.  In every case, the resident should have an effective General Durable Power of Attorney in place naming a trusted agent and  alternates. Many nursing home residents are unable to monitor their own accounts, or may be unable to monitor their own accounts during periods of illness, disability, or incapacity. An attorney-in-fact empowered by a Power of Attorney document can monitor the resident account, and even minimize its use by keeping a limited amount of funds in the account. If the agent is willing and able to pay the resident’s bills, the use of the account will be limited to small purchases and will be less tempting to those who are using the accounts for their own purposes.

Fortunately, the resident fund accounts are usually insured.  An attorney-in-fact can make a claim against the insurance company is a loss is discovered.  Such a claim may be frustrated if the resident is unable to prosecute a claim.  It is important that losses are identified quickly, and claims made timely.  

The attorney-in-fact should also make sure that ultimate disposition of the account is provided for, either by an assignment of the account to the resident's revocable trust, or by a transfer upon death or payable upon death designation.  Otherwise the account may require probate court disposition.