Tennessee Law Blog

I recently read an article on our local paper, The Tennessean. The article was from a lawyer who represents nursing homes. He was complaining as to how costly litigation is for the nursing home and that he believes the government is being to picky on their inspection of the homes. Despite these complaints I didn't read an answer to stopping the litigation or to preventing the nursing homes from being cited for not protecting their residents from harm. I assume the nursing homes just wants to have any scrutiny to stop.

Guess what? I have a better idea to stop the lawsuits and annoying citations from he Tennessee Department of Health. Start taking care of your residents. I don't understand how this "industry" fails to see that everyone would be better off if they would worry a little less about profit and a little more about the residents. Almost every case I pursue I meet workers who tell me they didn't have enough help at the home to give residents the care they need. I honestly believe if the homes would hire just a few more qualified workers they would not have to worry about lawsuits or citations.

I would love to never file another nursing home neglect suit again in my life. If the industry wants to make that happen they should stop complaining bout people picking on them and start giving the residents who rely upon them good care.

Cardinal Health, an $87 billion global manufacturer of medical equipment, announced today the voluntary recall of all Alaris Pump modules shipped prior to September 27th. These Alaris Pump modules (also known as the Medley Pump module) have dangerously defective spring mechanisms which can make these defective medical devices dangerous and deadly.

The purpose of infusion pumps is to introduce fluids (medication, saline, blood, etc.) into the body with regular, repeat precision. These machines can administer as little as 0.1 ml per hour, which is much smaller than a drip or injection by nursing staff can deliver--when these devices work.

The Alaris Pump module is used for all age groups, including infants, and for any number of fluid infusions. The danger of this medical device is in its defective occluder springs. Defects in the devices' occluder springs were caused by springs being misassembled (bent, broken, or missing); these little coils of metal regulates how much fluid is administered. Already two people have died allegedly from these defective medical devices.

These Alaris Pump modules were distributed to 46 states (including Tennessee), to Canada, and overseas. Overinfusion caused by defective springs may be difficult for medical personal to detect because these misassembled springs may operate with varying degrees of regularity. Serial numbers for defective devices can be found at Cardinal Health’s defective Alaris Pump recall page.

If you have suffered injury from an Alaris Pump or other defective medical device, contact the experienced Nashville, TN defective products lawyers at Higgins, Himmelberg & Piliponis by dialing (615) 353-0930 or fill out our defective medical device and recalls contact form.

There’s a certain conception of workplace discrimination that I’d like to correct in this week’s Tennessee Law Blog. Too often Tennessee workers whom HHP partner Attorney Rick Piliponis and I have met with do not realized that they were being discriminated against, though they were passed over for promotions or denied benefits, because no one was mean to them or made inappropriate comments.

There are two main requirements in Tennessee workplace discrimination lawsuits, and neither of them requires that your employer be mean to you. These two Tennessee workplace discrimination requirements are:

1. Protected class - Federal and Tennessee employment law prevents discrimination in the Tennessee workplace on the basis of race, color, religion, age, gender, or disability.
2. Financial loss – a determinable financial loss whether this is denial of time off, promotion, or transfer or other prejudicial treatment based on your protected class. If you quit your job because of workplace discrimination and found a higher paying one, then it will be difficult to demonstrate losses in a Tennessee discrimination lawsuit.

In fact, your Tennessee employer can be mean to you and can treat you unfairly and different from the other workers. Title VII and other federal and Tennessee discrimination laws only state that your employer can’t be mean or unfair because of your protected class. When your protected class causes you and others of your protected status to suffer unfair or unequal pay or perks, then you should speak with a Nashville, Tennessee discrimination attorney.

Disparate Impact and Tennessee Discrimination

On a basic level, workplace discrimination lawsuits are the same: they require proof of discrimination based upon a characteristic protected by law (protected class). Because they are similar, I am going to focus on workplace age discrimination, though age, sex, veterans’ status, and another characteristic protected by discrimination law when I discuss disparate impact.

Disparate impact occurs when corporate policy creates a situation in which members of a protected class are put at a disadvantage. Often, this discrimination is unintentional, though it often takes legal representation to force the company’s hand and provide backpay for wages, promotions, or other moneys Tennessee employees would have earned if they weren’t a member of a protected class.

Disparate impact developed through a 1971 Supreme Court case that decided:

“[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

Disparate impact is not always easy to detect. Its standards are applied to all employees, though it indirectly discriminates as can be shown through losses in pay or promotion. A famous case of this involved providing incentives that put workers 40 years of age or older at a distinct disadvantage.

Mr. Smith Goes to Washington

Age discrimination as an unintended effect of employment policies was the basis of the 2004 Supreme Court case Smith, et al. v. City of Jackson, Mississippi, et al. Mr. Smith and other police officers in the lawsuit were over 40 years old, a characteristic protected by law under ADEA (Age Discrimination in Employment Act). While the City of Jackson did not mention age as a requirement for its benefits, a new policy it enacted put older officers at a disadvantage.

City officials wanted a positive revision to their police officer pay program. They wanted to retain the new officers they had recruited, so they offered wage increases to all officers and dispatchers, though a larger wage increase to those police officers with less than five years of service. This had the effect of putting employees with more than five years at a disadvantage--and most of these employees were 40 or older. Although on paper no specific group was being discriminated against and although city officials might never have meant to put older employees at a disadvantage, protected workers found themselves not being paid fairly.

Nashville, Tennessee Workplace Discrimination Attorneys

If you believe you have been a victim of age or other employment discrimination in Nashville or anywhere in Tennessee, the Nashville employment attorneys at Higgins, Himmelberg & Piliponis at (615) 353-0930 or fill out our contact form to speak with a qualified Tennessee discrimination attorney about the possibility of a discrimination lawsuit.

There appears no getting away from nursing home abuse this month as nearly 300 Nashville nursing home residents look for new homes and facilitated care after Medicare and Medicaid was cut this week form McKendree Village for nursing home violations. Meanwhile, state representatives heard from Tennessee nursing home care advocates this week on the need to put more emphasis on home and community-based care, as I discussed in this previous nursing home abuse blog. Lastly, and most unfortunately, Nashville police are charging a nursing home worker with the rape of a nursing home resident.

Nursing home sexual abuse is a difficult subject to discuss. Unfortunately, this difficulty does not prevent it from being issue. No, nursing home sexual abuse is more common than we comfortably admit--and too often more common than nursing home staff and law enforcement care to publicize, investigate, or acknowledge. The case this week fits the usually mold for nursing home sexual abuse. I hope that my reporting its details here in the Tennessee Law Blog may help readers identify sexual abuse in those trusting a Tennessee nursing home to their for the care and protection.

After allegations were made in May, last Wednesday (12/05/07) police finally arrested the 44-year-old male medical worker accused of the aggravated rape of a 70-year-old female nursing home resident at Madison Healthcare and Rehabilitation Center. After a thorough investigation and conclusive DNA evidence, a warrant was finally issued for the nurses assistant’s arrest. Though it is unusual that the health care worker did not have a criminal history, his choice of victim for sexual abuse is common for nursing home abuse cases: The nursing home victim had dementia.

Dementia patients have a higher frequency of nursing home sexual abuse because predators suspect their accounts will not believed. One must wonder if the victim’s dementia was the reason it took Nashville police over half a year to bring charges against the male worker. Fortunately, this was not a case of the nursing home dragging its feet; Madison Health and Rehabilitation staff began an immediate investigation and reported the allegations of sexual abuse to the police. The Tennessee Department of Health is also conducting its own investigation to assess how this rape was permitted to occur and what can be done to ensure no other rapes or other forms of sexual abuse will occur in the nursing home.

Prevent Sexual Violence in Tennessee Nursing Homes

Nursing home sexual abuse is a delicate subject. Most nursing home residents do not feel comfortable discussing issues of sexuality and abuse. Sometimes they feel intimidated by staff or a sense of powerlessness. Sometimes they feel guilty, as if they were somehow to blame for the rape or inappropriate sexual conduct.

It is important not to compound feelings of guilt or shame by avoiding discussing the subject if it concerns sexual matters. Just because your nursing home loved one has a history of fibbing or confusing fantasy with reality does not mean you should ignore their accounts of sexual abuse out-of-hand. Such allegations are serious. It does not matter how many times they have “cried wolf.” This lack of belief is exactly what nursing home sexual predators look for.

My legal staff and I work throughout the state with Tennessee victims and families of Tennessee victims of sexual and physical nursing home abuse. For a free consultation, fill out our quick nursing home attorney contact form.

For this week’s Tennessee Law blog entry, I’d hoped to define workplace discrimination under Tennessee employment law and discuss how many recent class action discrimination cases are not the result of meanness or maliciousness on the part of an employer. Instead, I’m pushing this article back to report what will hopefully prove the last Tennessee nursing home abuse story for 2007.

Nashville nursing home McKendree Village, one of Nashville’s best-known nursing home facilities, on Friday became the 21st Tennessee nursing home in 2007 to have admissions suspended due to violations.

Tennessee Department of Health officials have fined McKendree Village $15,000 and suspended resident admissions to the 40-year-old Nashville nursing home for what investigators claim were a variety of violations. From the Tennessee investigators’ report, the federal government has ended Medicare and Medicaid payments to the Nashville nursing home.

McKendree Village is a 300-bed nursing home located Hermitage, TN (East Nashville) and has a covenant relationship with the Tennessee Annual Conference of the United Methodist Church.

If you need the services of an experienced Nashville nursing home abuse lawyer, call Higgins, Himmelberg & Piliponis at (615) 353-0930 or fill out HHP’s quick and easy contact form to speak with either myself, Attorney Jim Higgins, or one of our Tennessee nursing home abuse lawyers. Consultation is always free.