Why You Should be Concerned – A Case in Point, Ioffe v. Hebrew Home
by Jeffrey J. Downey, Esq
On May 25, 2018, Ekaterina Ioffe fell off her bed while being cared for by a nurse aide at the Hebrew Home of Greater Washington, in Rockville, Maryland. The aide had failed to secure the side rails and accidently rolled her off the bed. Ms. Ioffe fell to the floor suffering a head injury. As she bled out her nose, she went into respiratory distress and died within minutes of the fall.
The nursing facility had an attending doctor, Mina Fazli, MD, complete the death certificate rather than referring the matter to the Maryland Medical Examiners Office. Dr. Fazli noted that the patient’s immediate cause of death was dementia and that she died of “natural causes.” This week, the children of Ms. Ioffe have filed a lawsuit against the nursing home and Dr. Fazli, alleging negligence and conspiracy, for inaccurately recording Ms. Ioffe’s cause of death in an attempt to protect the nursing home.
Unfortunately, this is not an isolated incident, explains the Ioffe’s attorney, Jeffrey J. Downey. With over 1.3 million Americans in nursing homes, it should come as no surprise that hundreds of thousands of Americans die in nursing facilities every year. When a resident dies in a skilled nursing facility, typically the death certificate is completed by an attending doctor or Medical Director of the nursing home. This physician may have a potential conflict of interest in reporting a cause of death that exposes the nursing home to potential legal liability. For this and other reasons, death certificates for nursing home residents are often inaccurate or misleading. Various studies have suggested that errors in death certification occur in approximately 33% to 41%[i] That means at least one of three death certificates is listing the wrong cause of death. When bias issues are factored into this analysis, death certifications can become even more unreliable.
Death certificates serve a vital function of providing data for epidemiologic health purposes as well as providing loved ones with an important aspect of the decedent’s medical history. Mortality data is used to track disease trends, set public policy objectives and allocate health resources and research funding. Skilled care facilities are also required to report these injuries to their licensing authority. Adverse events like falls, pressure wounds, dehydration, fecal impaction, etc., are supposed to be reported to the federal government. Reporting of such incidents can adversely impact a nursing home’s rating on websites such as www.medicare.gov/nursinghomecompare.com. Nursing homes sometimes try and characterize events like facility acquired pressure wounds as other conditions like blisters or deep tissue injuries, to avoid their reporting requirements. Fraudulent death certificates are another extension of this practice to underreport injuries and avoidable neglect that is resulting in the needless death of our seniors.
The cause of death opinion can impact a nursing home’s legal liability. After a patient passes away, the death certificate is often the only evidence of the actual cause of death. If a nursing home patient falls in the facility and suffers a hip fracture and 3 months later dies from various complications, it is a good bet that the nursing home’s medical director is not going to list the fracture as a contributing cause of death. In my experience, explains Downey, official medical examiners are more likely to attribute a fall as a contributing cause of death, where it results in a serious facture that causes the patient to medically decline, as compared to a medical director of the nursing home.
Prior to filing this case, we had this case reviewed by a medical expert who concluded that the fall was clearly the immediate cause of death for Ms. Ioffe,” explains Downey, an attorney representing victims of elder neglect and abuse. However, the patient was classified as dying from natural causes and no one ever contacted the Maryland Medical Examiner’s Office. Its important for doctors to understand that when they falsely certify death certificates, there will be civil ramifications.
Under Maryland law, an accidental injury, like a fall, is a basis for requesting the participation of a medical examiner.[ii] Under Maryland law a medical examiner must be notified where a death occurs from unknown circumstances, from an accident including a fall with fracture, where the deceased was not under the treatment of a healthcare providers or from any other “external manner of death.” (Md. Code, Title 4, General Health, Section 4-212)
In Virginia, a death certificate is typically completed by the physician who was last caring for the patient for the illness or condition that causes his death, unless the death was accepted by the medical examiner. Any death involving injury or trauma, like a fall, or suspicious circumstances, should be reported the medical examiner. Va. Code 32.1-283. In Virginia, the failure to follow regulations regarding death certifications is a class one Misdemeanor. Va. Code 32.1-27.
In the District of Columbia, a funeral director must report the death within 5 days of death to the DC Registrar. (DC Code §7,231.12 (a)). Within 48 hours, the physician in charge of the patient’s care shall return the medical portion of the death certificate to the funeral director, except when an inquiry is required by the Chief Medical Examiner’s office in DC. Any manner of death that is not believed to be due to natural causes shall be reported to the Chief Medical Examiner’s office, who may then take charge and conduct an investigation.
When a family member dies in a nursing home under suspicious circumstances implicating neglect, the family needs to be proactive in pursuing an independent cause of death analysis. Do not be afraid to inquire as to who is doing the death certificate and whether that person is affiliated with the nursing home. You may want to contact that person directly to find out what information he is considering in evaluating the cause of death. Depending on the state, a family can request that a medical examiner become involved in the cause of death certification.
For more information on this issue, contact the Law Office of Jeffrey J. Downey or visit jeffdowney.com. The Law Office of Jeffrey J. Downey is licensed to practice in Maryland, Virginia and Washington DC. Free consultations provided.
Law Office of Jeffrey J. Downey, PC
Email: jdowney@jeffdowney.com
Address: 8270 Greensboro Drive, Suite 810
McLean, VA 22102
Phone: 703-564-7318
[i] Pritt BS, Hardin NJ, Richmond JA, Shapiro SL. Death certification errors at an academic institution. Arch Pathol Lab Med 2005;129:1476–1479. [PubMed]; Sehdev AE, Hutchins GM. Problems with proper completion and accuracy of the cause-of-death statement. Arch Intern Med. 2001;161:277–284. [PubMed]
[ii]Title 4 (Health General) § 4-212. This statute requires that the medical examiner be notified where the cause of death involves an accident (including a fall), homicide, suicide, or where the cause of death in unknown.
(Tags: death certificate, wrongful death, fraudulent death certificates, false death certificates, conspiracy, pressure sores, decubitus ulcers, facility acquired pressure wounds, nursing home attorney, nursing home lawyer, malpractice lawyer, nursing home fall, fall causing fracture, fracture injuries, dehydration, malnutrition, impaction, Hebrew Home of Greater Washington, Charles E. Smith Life Communities