Lawsuit puts spotlight on nursing homes

Settlement reached in Ronan abuse, neglect case alleging administrator stole patient's medication

A Seattle law firm is publicizing a recent settlement between a Ronan nursing home and the family of one of its patients who died in allegedly excruciating untreated pain, calling the case an example of the abuse and neglect that is common in nursing homes. Owners of the nursing home say the allegations are false.

After Berniece Bjarko died on Jan. 13, 2001, at Westside Care Center in Ronan, her five adult children filed a lawsuit against the nursing home. They claimed that the nursing home administrator, who allegedly had a history of drug abuse, stole the narcotic patches off their elderly mother's back for her own use. In depositions, employees of the nursing home said that Bjarko frequently called out and prayed constantly because of excruciating pain caused by advanced rheumatoid arthritis. Doctors, the suit alleges, increased the amount of fentanyl, a synthetic narcotic, in the patches until they were enough to sedate a 200-pound man, though Bjarko weighed less than 70 pounds.

Nursing staff who left Westside after Bjarko died told the Bjarkos of the alleged thefts by the administrator.

"We only wanted her to be cared for and comfortable at the end of her life," her son Bill Bjarko said in a written statement. "It gives me chills thinking how much she must have suffered."

The family has declined to speak to the news media. The terms and amount of the monetary settlement are undisclosed.

Seattle attorney Tony Shapiro said his firm, Hagens Berman, decided to publicize the case because its story is all too common.

"I do think the abuse and neglect of critically and chronically ill residents happens all the time," Shapiro said in a phone interview from his Seattle office. "It happens over and over across the country, that their needs and care are ignored."

"A lot of times," he said, "I think, much goes unreported."

Westside Care Center owner Faye Abrahamson said that the charges against the administrator, Wendy Wadsworth, who is her daughter and no longer employed at Westside, were all untrue.

"The allegations made about Mrs. Bjarko were false," she said in a phone interview from the nursing home. "I don't believe that that happened. They couldn't prove that that happened."

Abrahamson said the charges came from disgruntled employees.

"We did settle," she said, "but that's because the goop was getting so thick."

"Since that allegation, we've had a complete change of staff, and everything's going great here," she said.

Faye and Wendell Abrahamson's lawyer, John Maynard of Helena, said no criminal charges were filed and that all parties denied there was any stealing of medication.

"Our position was then and is now that it never happened," he said in a phone interview. "She was never deprived of her pain medication."

Nursing home litigation is increasingly driven by insurance companies, he said, that encourage owners to settle out of court to avoid large punitive awards by juries.

"There is no admission of liability by Faye and Wendell Abrahamson, by Westside Care Center, by Wendy Wadsworth," he said. "This was a disputed claim and still is a disputed claim."

Employees said in depositions that nurses were alerted in the fall of 2000 when the only other Westside resident who received fentanyl patches for pain told them that the administrator was coming into her room and ripping them off her skin shortly after they were changed; the patches contain medication meant to last for three days. Nurses began noticing that Wadsworth paid the two patients personal visits with the curtain pulled closed shortly after they received new patches, they said.

One nurse said in her deposition that on several occasions the new drug patch she placed on Bjarko's back with the nurse's initials and the date was removed and an old one put in its place; this allegedly occurred after Wadsworth paid personal visits to the patient with the curtain drawn around the bed, she said.

Employees also alleged that when Bjarko died, Wadsworth insisted on cleaning the body herself, an unusual duty for a nursing home administrator. Afterwards, a box of fentanyl patches was missing, they said.

Wadsworth's daughter, Dawnalee Perry Jones, said in a deposition that she saw marks left by drug patches on her mother's skin and that her mother told her she took the patches off Bjarko; Jones said she saw the old patches in a bag in her mother's house after her mother told her where to find them. Jones said in two June 2003 depositions that she took illicit drugs with her mother until Jones stopped using drugs two years ago. She also said she saw her mother use methamphetamine in the nursing home bathroom and that her mother was hospitalized for drug abuse when Jones was 10 years old.

In a phone interview and then in a written statement, Abrahamson reiterated this week that, "Ninety-five percent of what has been said is lies, and it amazed me that we were powerless to fight them."

"Wendy's drug problem they refer to happened in 1985," she said. "That was 16 years ago. She worked for us for several years after that and did an excellent job with no problems."

"Wendell and I have devoted 25 years to caring for residents in this valley because we care," she said. "I cannot believe what a couple of vicious people can do to you and get away with it."

It's not known how often similar allegations or events occur in nursing homes or other health care institutions. The state does not keep numbers of drug diversion cases among nurses, said Lori Ballinger, the prosecuting attorney for the Montana Board of Nursing in the state Department of Labor and Industry.

"I can tell you that it is not uncommon that a nurse who has an issue with drug dependence will find a way to divert drugs from a facility," Ballinger said. "It's generally not from a patient."

Taking drugs from a facility is "bad," she said; taking them from a patient is "heinous."

"We don't see that very often," she said.

Acute-care facilities, like hospitals, generally have good controls of narcotics, she said. In long-term care institutions, the task is more difficult.

"You run into situations where it's so easy, it's so possible and it's so tempting," she said. "If you have the slightest inclination toward diversion of drugs, a long-term care facility is the place to be."

When the Board of Nursing receives a complaint, it is not made public unless a violation of the Nurse Practice Act is found. The board office has no record of a violation, and Wadsworth's license was renewed in November 2002.

Court records show that the Department of Justice Division of Criminal Investigations began a criminal investigation in the Bjarko case in March 2001. The attorney general's office declined to prosecute. The file is confidential.

The alleged incidents were investigated by the state Department of Health and Human Services Quality Assurance Division beginning in February 2001, according to LaDawn Whiteside, certification complaint coordinator. Beginning Feb. 7, six people associated with the community, the facility or the Bjarko family called to report lack of licensed staff, lack of certified nurse's aides and the theft of medication from Berniece Bjarko, she said.

A certification employee did an investigation at Westside, arriving unannounced, during the week of Feb. 27. The state record said the nursing home owners had investigated the alleged medication theft and instituted a drug testing policy and tightened its control over narcotics.

The only deficiency found was the absence of a registered nurse serving as director of nursing.

"In this case, the facility owners and subordinate staff took appropriate action in reporting the allegations, and the legal process dealt with the rest," Whiteside said. "The state agency did not impose a remedy against the facility."

The agency followed up with unannounced visits to Westside on Feb. 28, May 14, July 2, July 12 and Dec. 23, 2002, and on Feb. 5, 2003, and found no problems surrounding medications.

Wadsworth did not return telephone messages left at her Ronan home. She is working in a Polson nursing home, Abrahamson said.

What allegedly happened to Bjarko is not an isolated incident, attorney Shapiro said. A congressional report done by the staff of the House Government Reform Committee in 2001 found that 30 percent of nursing homes in the United States were cited for 9,000 instances of abuse in a two-year period from January 1999 to January 2001. The common problems included "inadequate medical care"; in 1,601 of the cases, the abuse violations were serious enough to cause harm or to place the nursing home resident in danger of serious injury or death, the report said.

Each year in Montana, about 2,500 cases of elder abuse are reported. For each case, Montana authorities estimate that four go unreported.

"It happens all the time," Shapiro said. "It is sadly way too common."

Nursing home workers are poorly paid, he said, and the residents are needy.

"It takes a person who has real care and compassion to take care of them," he said.

In the case of Berniece Bjarko, the family could not have predicted that would happen, and there's probably nothing they could have done.

Shapiro advises families to read all they can when choosing a nursing home. Look at federal Web sites. Get the names of nursing home residents and talk with them and their families.

"Really try," he said, "to have candid conversations."

Reporter Ginny Merriam can be reached at 523-5251 or by e-mail at gmerriam@missoulian.com

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