Virginia hospital assailed for seeking court actions to strip patients of decisions on care

vcuhospital-300x200A  Virginia hospital has found an eyebrow-raising solution to some of  its struggles with elderly, poor, and sick patients who take up beds and medical resources that might generate more revenue and less headache for the institution: Administrators hired a law firm and turned to the courts to strip legal control over the frail seniors from their loved ones.

Over families’ objections, the seniors’ newly appointed guardians then allowed the patients to be moved out of the Virginia Commonwealth University Health System hospital in Richmond and into poorly rated nursing homes. As the Richmond Times-Dispatch reported:

“A yearlong investigation by the Richmond Times-Dispatch, which involved analyzing more than 250 court cases and interviewing more than two dozen people, revealed that VCU Health System has taken hundreds of low-income patients to court over the past decade to remove their rights to make decisions about their medical care. This process, which frees up hospital beds at VCU Health System and saves thousands in uncompensated costs, often results in sick, elderly or disabled patients being placed in poorly rated nursing homes, sometimes against the wishes of their own family members. In these cases, VCU Health asks the court to grant an attorney at the ThompsonMcMullan law firm the power to make critical medical and life decisions for its patients. The court orders the attorney to represent the best interests of those patients, but the law firm continues to look out for the hospital’s interests on dozens of guardianship cases each year.”

The newspaper said VCU Health has paid the firm more than $1.1 million since 2007 for its work. Lawyers for the firm defended their work and insisted they have no professional conflicts, because the hospital ceases to be their client in each case, once a court appoints them to be a poor senior’s guardian. From that point on, the lawyers insist, they put the patients’ interests first. The Times-Dispatch reported, though, of firm lawyer R. Shawn Majette:

“Majette and two of his colleagues at ThompsonMcMullan, Andrea Yoak and Paul Izzo, have been involved in more than 90% of guardianship cases filed by health care providers in Richmond since 2014. Majette has as many as 120 people under his guardianship at a time — six times the caseload allowed for the state’s public guardians — and rarely visits them, even if he has had them placed in nursing homes that have a history of problems, according to annual guardianship reports he has filed.”

The Times-Dispatch looked at other hospitals in the area, finding they file far fewer guardianship cases, and officials at the institutions said they do not allow attorneys connected with them to serve as guardians.

The newspaper had this to say about the decisions from the bench affecting VCU Health, the lawyer-guardians, and the poor seniors:

“Richmond Circuit Court, charged by the state with upholding the laws intended to ensure vulnerable people receive due process before having some of their most basic rights taken away, regularly takes 15 minutes to hear guardianship cases involving Majette or one of his colleagues, without the patient being present or having a defense attorney to speak on their behalf. The judges often trust the recommendation of the guardian ad litem, an attorney appointed by the court as a neutral party to represent the patient’s best interests. The guardian ad litem — frequently suggested to the court by Majette — in nearly 90% of all VCU Health guardianship cases since 2014 was the same person, Henrietta Cannon, who was also paid by VCU Health for her work on its guardianship cases.”

The Times-Dispatch noted that the court had allowed the law firm several times to give up guardianship of low-income elderly patients, while also retaining the right to resume control over them, particularly if they were readmitted to VCU Health facilities. Experts quoted by the newspaper said that such arrangements were rare, even questionable, and showed the lawyers’ interest in serving the hospital ahead of patients.

VCU officials disputed the newspaper investigation, arguing that the number of guardianship cases it is involved with number only a few dozen annually — a minuscule number of the 40,000 patients treated annually at the 800-plus bed medical center hospital. As the Times-Dispatch reported:

“Hospital officials would not speak about specific patient cases but said they would only resort to guardianship against the wishes of a family member or friend if they have serious concerns about the patient’s safety under that person’s care or if there is a dispute among relatives about the person. When that does happen, they said they turn to someone with guardianship expertise. Before hiring ThompsonMcMullan in 2007, the hospital had its in-house attorney handle guardianship cases, but [the lawyer] became too overwhelmed with other legal matters to handle them all, [a hospital official] said. Majette was working on guardianship cases long before representing VCU Health System, taking on his first case in 1984 as a favor to the assistant city attorney at the time, Majette said.”

The lawyer said the courts, ultimately, determine what happens to patients under guardians. The newspaper reported this of the individuals affected:

“In the cases reviewed [by the Times-Dispatch], 87% of the people appointed a guardian in health care provider-initiated guardianship proceedings were deemed by the court to be very poor and couldn’t afford an attorney, meeting the state’s definition of indigent. Many of them had complex mental health diagnoses, including symptoms of schizophrenia, bipolar disorder, dementia or traumatic brain injury. Many also had serious medical diagnoses, from diabetes to heart failure to paralysis. Some struggled with homelessness and substance abuse. Court records indicate that many had no family or friends willing or able to step in and help them. But in some cases, hospitals pursue guardianship when a suitable caregiver is available, according to Veronica Williams, an elder law attorney based in Newport News with a special interest in what she calls ‘inappropriate hospital-sponsored guardianship petitions.’ This decision can be influenced by a hospital’s desire to move the patient out of an acute care bed, disagreement with the family’s preference for treatment, or assumptions about the family’s desire for community-based care over institutional care, Williams wrote in an article published by the Virginia Academy of Elder Law Attorneys.”

As the newspaper also reported:

“In 24 cases since 2013, including 18 initiated by VCU Health System, records indicate that there were family or friends willing to serve as guardian, but the hospital’s attorney was appointed the guardian. In at least 13 cases, Majette or another attorney was appointed guardian for the stated purpose of having the patient discharged to a nursing home, signed up for Medicaid, or to ensure a bill was paid.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent medical care. This has become an ordeal due to the skyrocketing cost, complexity, and uncertainty of medical therapies and prescription medications, too many of which turn out to be dangerous drugs.

Hospitals make up the biggest share of U.S. health care costs — more than $1 trillion of the nation’s spending in this area. It is true that politicians and policy makers have pushed hospitals to better control costs, partly by getting more patients more quickly out of their costly beds, especially those for acute care, and into other, less costly facilities, including nursing homes and skilled nursing facilities.

With VCU, the newspaper reported that:

“The state and federal governments paid VCU Health System $108.7 million in fiscal year 2019 to cover uncompensated indigent care that the hospital provides. In fiscal year 2020, the public funding has dropped to $37 million, a reduction that factors in the anticipated impact of the additional Medicaid payments the hospital will receive as a result of the state’s decision to expand Medicaid eligibility. Still, if a person is uninsured or on Medicaid or Medicare, the hospital stands to lose thousands of dollars the longer the person stays in the hospital. Some guardianship petitions filed by the hospital include the person’s growing debt as one of the reasons to expedite guardianship and discharge …”

But my colleagues at the firm and I also already see damage inflicted on patients and their loved ones due to abuse and neglect at nursing homes, and this nightmare will only increase as the nation grays. It won’t help, if big hospitals shove into weak or poor performing nursing homes the desperately sick, poor, frail, and aged patients from their units. Haven’t we also seen enough of hospitals hounding patients, including their own staff and folks who can barely make ends meet, over medical debts?

We’ve got a lot of work to do to ensure that seniors, including the poor and vulnerable, get safe and quality care and never the short end of a legal stick.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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