On August 18, 2014, the Ventura County Superior Court in California granted final approval of a settlement for compensatory and injunctive relief on behalf of a class of hundreds of nursing facility residents who were given psychotropic drugs without their informed consent. AARP Foundation Litigation attorneys represented residents in the Ventura County Convalescent Hospital who were administered drugs without consent, including many with FDA black box warnings about the danger they pose to people with dementia, like the mother of the lead plaintiff in the case.
Kathi Levine’s mother was admitted to the nursing facility after suffering a hip fracture and was prescribed a variety of unnecessary medications administered without the consent required by California law. In the class action, Levine v. Ventura Convalescent Hospital, Levine was the lead plaintiff as representative of her mother’s estate.
Levine stated that even though she held the medical power of attorney for her mother, she was never consulted about the administration of medications and her consent was never obtained. She did not even know about the prescription of these drugs until her mother was being discharged from the facility, at which point a nurse told her about the powerful sedatives, anxiety drugs, antidepressants, and antipsychotic drugs that were given to her mother, who suffered with dementia which was manageable when she lived in the community.
Levine believes that the drugs turned her mother into a person with little cognitive function who would babble nonsense at all hours of the night, too confused and sleepy to even participate in the physical therapy that had been the purpose of her admission to the facility. Once her mother was discharged, her doctor tried in vain to wean her off the powerful medications. Within a few weeks, her mother died.
Levine reported the facility to the state Department of Public Health. The agency ruled that the facility had failed to ensure that Levine’s mother was free from unnecessary drugs which had put Levine’s mother in direct and immediate danger. However, because her mother had already died, the agency took no further action to address the systemic issues at the facility.
Levine sued the nursing facility, and AARP Foundation Litigation attorneys joined attorneys Gregory Johnson and Jody Moore to represent her and all others similarly treated. The lawsuit alleged that while these drugs may make residents easier to handle, by needlessly medicating residents and by failing to obtain their consent, the nursing facility violated federal and state laws particularly designed to protect residents of nursing facilities.
Settlement of the case included a court order that sets clear standards for the facility to verify that the physician has had a meaningful and complete discussion with the patient (or legal representative for incapacitated patients) about the medications prescribed, possible side effects, and alternatives, before administering a drug. The settlement also provides financial compensation to the members of the class
and attorneys’ fees to counsel. In approving the settlement, the court stated that: “But for Class Counsel's willingness to confront the defendant it is highly likely that the hundreds of patients . . . would still be receiving psychotropic medications without informed consent.”
What’s at Stake
In 2012, the federal Centers for Medicare and Medicaid Services (CMS) launched a national initiative to reduce the use of antipsychotic medications in nursing facilities and the federal Food and Drug Administration (FDA) has issued strong warnings after finding evidence that antipsychotic drugs are increasing death rates in older patients with dementia. More than one out of every five nursing facility resident is still given powerful psychotropic drugs
In California alone, almost 60 percent of nursing facility residents are given psychotropic drugs, a 30 percent rise since 2000. The effects of these drugs are devastating, threatening health and often turning residents into people their own families cannot recognize. According to recent CMS data, as a consequence of this lawsuit, Ventura Convalescent Hospital has dramatically changed its medication administration procedures and now has less than 2 percent of its residents on psychotropic drugs.
Lisa Marsh Ryerson, President of AARP Foundation, stated that this “precedential litigation and settlement make clear that nursing facilities cannot administer drugs to residents without allowing informed consent. I am proud that AARP Foundation Litigation attorneys once again have been vigorous advocates for vulnerable, often isolated, older people in nursing facilities.” In July 2014, the AARP Bulletin ran a Special Report entitled, “Prescription for Abuse: Antipsychotics in Nursing Homes,” in which this litigation and the issue of inappropriate medications in nursing facilities was described in detail. The response to the Bulletin article has been overwhelming from members nationwide whose families suffered similar horrible experiences.
The Levine v. Ventura Convalescent Hospital settlement was approved by the court, which required the facility to deposit the settlement amount by August 28, 2014 for distribution to the class members. A court monitor will begin to evaluate the long term performance of the facility to ensure compliance with the court’s injunction.