Special report: Cayuga County nursing home lawsuits include maggots, COVID-19

Mar. 12—The lesion on John's forehead had been examined by the staff of Auburn Rehabilitation & Nursing Center more than 15 times before maggots were found living inside of it.

The discovery was made at Auburn Community Hospital in October 2016. John, whose full name is being withheld by The Citizen out of sensitivity to his family, developed the lesion in March of that year after squamous cell carcinoma was removed from his forehead. Staff of the Auburn nursing home observed "chunks" falling out of the lesion in June, and necrosis of the nearby skin in August.

As ordered by a doctor, the staff was changing the dressing on John's forehead every day and examining the lesion about once a week. But it was only becoming more painful. On Oct. 18 he once again saw the doctor, who prescribed a fentanyl patch. Staff was instructed the next day to crush and sprinkle the antibiotic Flagyl on the lesion. On Oct. 20, John was transferred to the hospital.

There, staff "inexplicably" discovered the maggots, according to a lawsuit filed against the nursing home by John's family the following year. Along with eggs there were living adults, indicating they had been in the lesion for "a considerable amount of time." He was treated at the hospital for six days, then admitted to Huntington Living Center in Geneva. John passed away a month later, on Nov. 28.

The lawsuit by John's family is one of 13 filed in Cayuga County Supreme Court over the last decade that allege wrongful death or injury in the county's four nursing homes. The Citizen is reviewing the lawsuits, prompted by the most recent filing in February, in order to raise awareness of the problems that may have caused them and what long-term care advocates believe are their solutions.

'Deprivation of human dignity'

Three of the 13 lawsuits have been filed against Auburn Rehabilitation & Nursing Center, located at 85 Thornton Ave. in the city. John's family settled theirs for $130,227.82 in September 2019.

The other two, filed in February 2021 and December 2023, remain open. The former is set to go to trial April 1.

Neither lawsuit, nor any of the others reviewed by The Citizen, contains allegations as specific as those made by John's family. The two others against the Auburn nursing home accuse it of breach of contract, violating New York State Public Health Law, and causing injury to residents through negligent hiring, training, care and management. The December 2023 lawsuit alleges wrongful death as well.

The 92-bed facility's administrator, Judson MacCaull, did not respond to requests for comment by The Citizen.

Eight of the 13 lawsuits reviewed by The Citizen were filed against The Commons on St. Anthony at 3 St. Anthony St. in Auburn.

The first, filed in September 2018, alleges the nursing home's negligence caused pain, suffering, emotional distress and eventually death to a resident. It was settled for $225,000 in April 2021.

Another wrongful death lawsuit filed in December 2018 accuses The Commons of failing to recognize or treat a patient's pneumonia before they were admitted to the emergency room of Auburn Community Hospital with a severe case of the respiratory infection on Dec. 24, 2016, and dying a day later. However, the lawsuit was dismissed in July 2022 because the plaintiff failed to retain counsel.

Two of the lawsuits were filed by former residents who experienced falls. One, who sued in September 2019, alleges staff treated their leg injuries in a "careless and reckless manner." It was settled for an undisclosed amount. The other fell and fractured their left patella during physical therapy, prompting their lawsuit in November 2020. It was discontinued a year later, without mention of a settlement.

Three more lawsuits, which remain open, were filed in January 2022, June 2023 and February 2024. All accuse the nursing home of breach of contract, violating Public Health Law and negligence. The latter two allege wrongful death. The most recent claims the resident was denied requested fluids, fall prevention measures and more, causing "deprivation of human dignity" and a fractured arm and hip.

The Commons, whose 300 beds make it the largest nursing home in Cayuga County, is also the subject of what appears to be the only local wrongful death lawsuit involving COVID-19.

Filed in December 2022, the lawsuit accuses the Auburn facility of negligence and malpractice during an outbreak of the virus that killed 60 residents in the winter of 2020-2021. The failure of staff to contain and properly treat infections, the plaintiff says, caused their 83-year-old father "excruciating pain and agony" followed by his death that December. The lawsuit remains open.

Asked by The Citizen for comment on the lawsuits, The Commons operator Loretto provided a statement:

"While we cannot comment on individual cases, we can assure the community that we take every resident's care — and the voices of their family members — very seriously and we comply with all health and safety requirements," said Julie Sheedy, Loretto's chief marketing and engagement officer. "Loretto has operated The Commons since 2014, and has cared for approximately 9,000 residents in that time. Loretto continues to actively invest in residents, employees, advanced training, and new technologies at The Commons to ensure the highest level of care in the Auburn community."

The last two lawsuits reviewed by The Citizen were filed against Northwoods Rehabilitation and Nursing Center, a 40-bed facility at 7 Keeler Ave. in the village of Moravia. One was filed in June 2023 and the other in October 2023, and both remain open. They accuse Northwoods of breach of contract, violating public health law and negligence, with the former alleging wrongful death as well.

The nursing home's owner and administrator, Boruch Sheps, sent the following statement on the lawsuits to The Citizen:

"As health care providers, we adhere strictly to patient privacy laws, which prohibit us from discussing individual cases publicly. However, we want to assure the community that our facility continually upholds the highest standards of care, implementing rigorous protocols and procedures to ensure the safety and comfort of every resident. Our dedicated staff members work tirelessly to provide compassionate and professional care to those in need. We appreciate the opportunity to address concerns and reaffirm our dedication to maintaining a safe and supportive environment for our residents."

No recent Supreme Court lawsuits against the county's fourth nursing home, Auburn Community Hospital's 80-bed Finger Lakes Center for Living at 20 Park Ave., could be found by The Citizen.

'Not a lot of accountability'

There doesn't appear to be any data that shows how common wrongful death and injury lawsuits against nursing homes are.

But they're rare, said Richard Mollot, executive director of the Long Term Care Community Coalition, which works to improve care in nursing homes and other residential settings in New York state.

That's not because of a lack of what Mollot called "substandard" care. Such lawsuits are rare, he said, because residents and their family sometimes don't realize Public Health Law gives them the right to sue nursing homes, or they sign that right away. Sometimes they contact a lawyer, but are told their case isn't legally viable. And sometimes they decide the emotional cost isn't worth the money.

"A lot of people are just convinced that's the way things should have been," he told The Citizen.

"Sometimes the care is really egregious, but they don't want to sue because they don't want to wallow in the unnecessary suffering their loved one had. ... They want to move on."

Mollot identified staffing levels and training as two major causes of the substandard care that leads to lawsuits.

Public Health Law requires staffing of 3.5 hours of care per resident per day. But as noted in February 2023 testimony by the New York State Health Facilities Association and Center for Assisted Living, 75% of the state's nursing homes do not have enough staff to meet that requirement. The same testimony blames that on nearly $2 billion in state Medicaid funding cuts over the last 15 years.

In Cayuga County, two nursing homes do not meet that staffing requirement, according to data from ProPublica's Nursing Home Inspect project. Auburn Rehabilitation & Nursing Center offers 3.4 hours of care per resident per day, and The Commons on St. Anthony offers 3.3. Meanwhile, Northwoods Rehabilitation and Nursing Center offers 3.61, and the Finger Lakes Center for Living offers 4.25.

ProPublica also tracks annual staff turnover in nursing homes, which is 61% at Auburn, 53.1% at The Commons and 24.7% at Finger Lakes. Northwoods' was not available. The state average is 44.4%.

"Having a sufficient number of competently trained staff — you would think it's a no-brainer requirement, but most nursing homes don't based upon data they report," Mollot said.

Staff training, meanwhile, should emphasize more "person-centered" care, said Claudette Royal, the New York State Long-Term Care Ombudsman, in an email to The Citizen.

The ombudsman program advocates for nursing home residents and addresses concerns raised by them and their loved ones. Staffing is among the biggest concerns, Royal said, along with being treated with dignity and respect, being responded to when requesting assistance, and nutrition. A person-centered approach to care would better address most, if not all of those concerns, the program believes.

"This means adjusting to residents' preferences, desires, and making facilities feel more like one's home," Royal said, agreeing that such care is difficult without "recruiting and retaining quality staff."

Regulatory weaknesses contribute to substandard nursing home care as well, Mollot said.

The Federal Nursing Home Reform Act of 1987 requires, among other things, periodic assessments of residents beginning with their admission. The assessments include clinical needs, goals and more in order to determine if the nursing home has the ability to meet them. While the law is "quite good," Mollot said, nursing homes still accept and retain residents that assessments show they shouldn't.

One reason for that, he continued, is underenforcement. He estimates 95% of nursing home citations are logged as not causing harm to a resident, which results in no financial penalty.

"The message to the industry is, you can provide substandard care and we're going to continue to pay you and not fine you," he said.

ProPublica data on inspections by the Centers for Medicare and Medicaid Services shows no serious deficiencies by any of Cayuga County's four nursing homes since 2018. Total deficiencies, however, are 26 at Auburn Rehabilitation & Nursing Center, 15 at The Commons on St. Anthony, 12 at Northwoods Rehabilitation and Nursing Center, and zero at the Finger Lakes Center for Living.

The Commons is the only Cayuga County nursing home to be fined by the Centers for Medicare and Medicaid Services recently. It received five fines totaling $6,500, all in the year 2021.

The New York State Department of Health reports similar inspection data, and more financial penalties. Total citations since February 2020 are 38 at Auburn, 20 at The Commons, 14 at Northwoods and 12 at Finger Lakes. As Mollot indicated, none of the citations were "related to actual harm or immediate jeopardy." The state average is 23 total citations, with 2% being related to resident harm.

Total fines by the department since February 2014 are two for $19,000 at Auburn, one for $10,000 at The Commons, two for $12,000 at Northwoods and none at Finger Lakes.

The Department of Health also records complaints against nursing homes since February 2020. Against a state average of 51.8 per 100 occupied beds, Auburn has 101.6, The Commons has 69, Northwoods has 76 and Finger Lakes has 19.7. (Complaints can be filed by calling 1-888-201-4563 or using the form located at https://apps.health.ny.gov/surveyd8/nursing-home-complaint-form.)

There are many more obstacles to improving nursing homes in New York state, Mollot said, including workforce burnout after the COVID-19 pandemic and an "extremely wealthy" industry lobby. But systemic change needs to happen in order to stop more stories like those of John and the other 12 Cayuga County nursing home residents behind the recent lawsuits reviewed by The Citizen.

"It's an ongoing challenge. There's not a lot of accountability," Mollot said. "We've been conditioned to accept substandard nursing home care in this country, and particularly in New York state."

More online

To access ProPublica's Nursing Home Inspect project data for Cayuga County, visit https://projects.propublica.org/nursing-homes/state/NY/county/c-050.

To access the New York State Department of Health's inspection and enforcement data for state nursing homes, visit profiles.health.ny.gov.

For more information on the Long Term Care Community Coalition, visit nursinghome411.org.

For more information on the New York State Long-Term Care Ombudsman Program, visit aging.ny.gov/long-term-care-ombudsman-program or email ombudsman@aging.ny.gov.

Executive Editor David Wilcox can be reached at (315) 282-2245 or david.wilcox@lee.net.

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