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Star Tribune Questions the Minnesota Department of Health’s Nursing Home Investigations

By Kosieradzki Smith Law Firm / February 20, 2017

On the front page of today’s Star Tribune, investigative reporter Chris Serres questions the effectiveness of the Minnesota Department of Health’s commitment to protecting residents of Minnesota nursing homes.  This is an issue that the Kosieradzki Smith Law Firm has been adamantly pursuing for years.  The Star Tribune article, entitled “Minnesota health regulators can’t keep up with abuse reports,” features a case the Kosieradzki Smith Law Firm is handling on behalf of the family of Alvera Solyst.

The article also quotes Mark Kosieradzki: “It’s incomprehensible the number of cases that involve blatant criminal behavior where the Department of Health says, ‘No big deal,’ and the perpetrators are not held accountable.”

In the law suit for the wrongful death of Alvera Solyst, which is scheduled for trial in Austin in September, St. Mark’s Lutheran Home nursing home staff overdosed Ms. Solyst on the highly potent narcotic, Fentanyl.  The evidence in the case shows that:

  • Samantha Stark, the nurse who administered the Fentanyl patches on October 14th without making sure that the old patches had been removed, did not have the competency required to care for Ms. Solyst.
  • St. Mark’s did not ensure, as it was required to do, that Nurse Stark knew how to administer the narcotic patches properly. They did not train her or supervise her during the three months she worked part-time at St. Mark’s before she overdosed Ms. Solyst.
  • When Kosieradzki • Smith questioned Nurse Stark in a deposition, Nurse Stark admitted that she had made a mistake and violated the standard of care.
  • St. Mark’s Director of Nursing reported Nurse Stark to the Board of Nursing for this “significant medication error.
  • According to Ms. Stark’s deposition testimony, the Board of Nursing found not only that Nurse Stark was responsible for the medication error, but so was St. Mark’s for failing to have the proper procedures in place.
  • St. Mark’s Director of Nursing admitted in her deposition testimony that St. Mark’s did not have a protocol in place at the time that directed its staff on what to when a patient’s narcotic patches could not be located.
  • Nurse Stark testified that in her short experience at St. Mark’s, patients’ old Fentanyl patches frequently could not be located.
  • After Nurse Stark’s shift was over on October 14th, St. Mark’s nursing staff should have continued to look for the old patches, but they did not.
  • St. Mark’s staff consistently failed to complete the Medication Administration Record (“MAR”) for Ms. Solyst.  If they had documented the MAR like they were supposed to, Nurse Stark would have been able to locate the old patches on October 14th.
  • The Director of Nursing had only been a registered nurse for a year and lacked the experience to manage the facility and to correct the longstanding deficiencies in staffing and care services at St. Mark’s.
  • St. Mark’s attorneys hired an expert witness to testify on St. Mark’s behalf at trial.  His expert report, however, does not help St. Mark’s.  He will testify that St. Mark’s administered a fatal overdose of narcotic to Ms. Solyst and that timely administration of Narcan would have reversed the effects of the narcotic overdose and saved her life.

Based on this and addition evidence that St. Mark’s staff deliberately disregarded the safety and rights of Ms. Solyst, the District Court has allowed her family to pursue punitive damages against the nursing home.

Remarkably, however, despite the clear evidence of neglect and disregard, the Minnesota Department determined on June 11, 2015 that the allegation of neglect against St. Mark’s was “unsubstantiated.” The MDH’s decision and its refusal to reconsider its incorrect conclusion are unacceptable.  The Kosieradzki Smith Law Firm and the court-appointed trustee for the family of Ms. Solyst are vigorously pursuing the MDH to reconsider its determination.

The MDH intake regarding the overdose of Ms. Solyst was received on October 22, 2014 at 11:03 a.m. The 60-day deadline for MDH was December 21, 2014. MDH did not even interview her daughter until March 4, 2015 (73 days after the deadline) or Nurse Samantha Stark until March 24, 2015 (93 days after the deadline) or Nurse Sandra Garver until March 24, 2015 (93 days after the deadline). OHFC did not issue is investigation report until June 11, 2015 (172 days after the deadline).

Moreover, Minn. Stat. § 626.557, subd. 9c(e) specifically provides that “[i]f the lead investigative agency is unable to complete its final disposition within 60 calendar days, the lead investigative agency shall notify . . . the vulnerable adult or the vulnerable adult’s guardian or health care agent, … [and] [t]he notice shall contain the reason for the delay and the projected completion date.” MDH knew that Ms. Solyst’s daughter was the power of attorney for her mother, yet did not provide the required notice to her daughter.  No matter what, it should never be too late for the truth and for the MDH to get its investigation right.

This delay by the MDH is not unusual. The Star Tribune article states: “Health investigators have fallen so far behind that Minnesota is running afoul of state and federal laws requiring prompt reviews. Abuse victims and their families are now waiting an average of six months for the Health Department to complete investigations, which is three times the 60-day deadline mandated under the Minnesota Vulnerable Adults Act. In 85 percent of the cases, the agency is failing to complete its investigations within statutory time frames, state data shows.”

The MDH investigator, Elizabeth Swan, incorrectly determined in this case that the allegation of maltreatment for this clear medication error was “not substantiated.” Ms. Swan’s investigation report is dated June 11, 2015. The MDH has posted at least 26 of Ms. Swan’s investigation report since June 11, 2015. Of those 26 reports, Ms. Swan substantiated a finding of maltreatment in only two cases. Of the remaining 24 reports, she determined that the allegations of maltreatment were “not substantiated” 21 times, and were “inconclusive” 3 times. Seven of her 26 investigations involved medication concerns. That track record indicates an investigator who is awfully friendly with the industry.

Similar to Ms. Swan, another MDH investigator (William Nelson) investigated an allegation that the staff at Woodlyn Heights Healthcare Center erroneously applied a new Fentanyl patch on a patient without removing the old Fentanyl patch. In that case, also involving a clear medication error, Mr. Nelson determined that the allegation of maltreatment was “inconclusive.” His investigation report is reviewed and adopted by you, the director of MDH. Remarkably, of the 26 investigation reports by Mr. Nelson that the MDH has posted online since January 1, 2016, he determined that the allegations of maltreatment were “not substantiated” 19 times, and were “inconclusive” 7 times. Again, this track record certainly favors the industry and raises serious concerns about who is actually watching out for the vulnerable adults in these facilities.

Even the expert witness hired by St. Mark’s in this lawsuit has determined that St. Mark’s administered a fatal overdose of narcotic to Alvera Solyst and that timely administration of Narcan would have reversed the effects of the narcotic overdose and saved her life. St. Mark’s had Narcan in its emergency medication kit at the time – and never used it and never told the doctor that they had it, even though the doctor directed St. Mark’s to send Ms. Solyst to hospital so she could receive Narcan.

The Kosieradzki • Smith Law Firm represents clients in cases involving catastrophic injury caused by nursing homes like the St. Mark’s Lutheran Home and other care facilities that fail to provide proper care. If you believe your loved one has been harmed due neglect or abuse in a nursing home, take action and contact the Kosieradzki • Smith Law Firm online or call us toll-free at (877) 552-2873 to set up a no-cost, no-obligation consultation.