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AARP joins antipsychotic-drug lawsuit against Ventura nursing home

Ventura County Star
Tom Kisken
May 1, 2012

The AARP has joined what lawyers call an unprecedented class-action lawsuit accusing a Ventura nursing home of using powerful drugs without the informed consent of residents or family members.

Lawyers from the powerful advocacy group's foundation will serve as co-counsel in a case alleging that Ventura Convalescent Hospital skirted California's regulations in providing antipsychotic drugs to residents. While state law requires nursing homes to verify that a doctor has received a patient's or family member's consent, the lawsuit contends the nursing home did not.

Although targeted at the nursing home, the suit also alleges Dr. Gary Proffett, a prominent Ventura County physician, routinely relied on nursing homes to obtain consent rather than doing it himself as the law requires.

A Ventura Convalescent Hospital administrator did not return phone calls seeking comment. Mark Kincaid, a lawyer representing the nursing home, declined to comment.

Proffett, being sued in a separate case, defended his actions. He said relying on nursing homes to obtain consent was routine for doctors until guidelines from the California Department of Public Health in January 2011 emphasized the importance of obtaining consent and changed that standard.

"You can't apply today's law to yesterday's admissions, and that's what they're doing," Proffett said. "That's like, 'I saw you speeding two years ago in a construction zone and now I'm going to give you a ticket.' "

Lawyers leading the litigation said the law hasn't changed and clearly states the responsibilities of doctors and nursing homes.

"The nursing home is literally the one that is putting the pill in the mouth and they are doing it without permission," said Gregory Johnson, the Oxnard lawyer who filed the class-action suit in November along with attorney Jody Moore of Thousand Oaks.

The case underscores the bristling debate over the use of chemical restraints to control the behavior of people in nursing homes with Alzheimer's disease and other dementia.

The need to bring more attention to the issue, and the rights of nursing home residents and their families, attracted the attention of the AARP, which has 38 million members 50 years and older nationwide and more than 3 million in California.

The case is not only the first involving informed consent and antipsychotic drugs that AARP has joined but also is believed to be the first class-action suit of its kind in California, said Kelly Bagby, senior counsel for AARP Foundation Litigation.

"It's critical that individual people who are harmed by these bad practices are able to seek to enforce their own rights," she said. "There's a sense that because a person is in a nursing home, they automatically consent to have these drugs administered to them. That's patently ridiculous."

The lead plaintiff is Kathi Levine, a 54-year-old office manager in Carpinteria. Her 79-year-old mother, Patricia Thomas, suffered from Alzheimer's disease and was admitted to Ventura's Community Memorial Hospital in November 2010 after being injured in a fall.

According to the lawsuit, Thomas was transferred to Ventura Convalescent Hospital for rehabilitation, and Proffett was assigned as her doctor. Levine said that when her mother was discharged less than three weeks later, she realized Thomas was taking a long list of powerful drugs like Zoloft, Ativan and Haldol.

"I freaked," said Levine, noting she had no knowledge of the prescriptions and had not given consent. "We have to be our parents' voices, especially with Alzheimer's. They can't speak for themselves."

Thomas died on Jan. 28, 2011, and lawyers allege the drugs played a role in her deterioration. They also have documentation showing the Ventura nursing home was cited by the California Department of Public Health for using unnecessary drugs.

The lawsuit alleges Proffett testified in other litigation that he never personally obtained consent and instead relied on the nursing home to inform residents. Lawyers also contend the nursing home and Proffett fraudulently created records verifying the physician had obtained consent.

Johnson expects the lawsuit will involve 80 to 100 plaintiffs. The lawyers are seeking residents at Ventura Convalescent and other nursing homes who received antipsychotic drugs over the last three-plus years without receiving detailed information about the drugs, their health affects and any alternatives.

Proffett of Oxnard admits patients to several nursing homes and has worked with the facilities for 35 years. He's also medical director of SeaView IPA, a medical network of more than 300 doctors who provide services throughout west Ventura County.

He said he's being unfairly targeted. He denied the lawsuit's allegation of paperwork fraud. He said that before January 2011, it was routine practice for doctors to allow nurses or nurse practitioners to obtain informed consent from new residents or their family members.

It's impossible for doctors who may see hundreds of nursing home residents to immediately be available to explain medication when a new resident is admitted, Proffett said. But the state Public Department of Health edict that nursing homes would be held in violation if consent protocol wasn't strictly followed changed that practice, he said.

Before that edict, Proffett said, he would not order new drugs or increase dosage without seeing the resident but would not interrupt antipsychotic medications prescribed by a previous doctor.

He said Thomas came into the nursing home severely impacted by dementia and already prescribed several antipsychotic medications. "I did not add or subtract," said Proffett.

Proffett said he relied on the nursing home to obtain consent. "If they had the daughter sign this stuff, we wouldn't even be talking," he said.

Johnson, however, alleged the doctor did order new drugs.

In addition to the class-action suit, Levine has filed a separate lawsuit against Proffett and the nursing home. In that action, the nursing home has filed a cross-complaint against the doctor, suggesting he should be held responsible for any wrongdoing.

Proffett said doctors need more leeway in dealing with patients who come to a nursing facility already prescribed antipsychotic medications. Current laws and threat of litigation mean doctors have to immediately obtain consent, interrupt needed medication or send residents back to the hospital.

"If you scare the bejesus out of everyone who does this, you're not going to be able to give care to patients who have psychiatric issues," he said. "And I think that's tragic."

Attorney Johnson, however, said nursing homes and doctors use antipsychotic drugs not for medical necessity but to control behavior.

"You don't have to be a doctor to figure out it's easy to care for people if they're overmedicated," he said.

Moore, the attorney from Thousand Oaks, said the way to bring about change is to force nursing homes to follow the law and verify that doctors not only get permission to use drugs but explain health effects and alternatives.

"What we really need is for the nursing homes to comply," she said.