State Sen. Ralph Alvarado, R-Winchester, opposes bills that would set minimum staffing requirements for nursing homes because those jobs can be hard to fill. “It’s a job that a lot of folks don’t, frankly, want to do,” Alvarado says.

He writes laws that help Kentucky’s low-rated nursing homes. He also works for them.

<div class="card-info center" style="padding: 0px;"><address class="author">BY <a href="mailto:jcheves@herald-leader.com">JOHN CHEVES</a></address><time>September 27, 2018</time></div>

State Sen. Ralph Alvarado, R-Winchester, is a doctor who works at nearly a half-dozen substandard nursing homes while he fights in Frankfort to protect the nursing home industry from personal injury and wrongful death lawsuits.

It’s typically Alvarado leading the charge whenever the Kentucky General Assembly tries to curb litigation against nursing homes through “tort reform.” His crowning achievement so far is a 2017 law requiring malpractice suits to pass through “medical review panels” composed of doctors deciding their merit, although the Kentucky Supreme Court this fall is considering a constitutional challenge to that law.

“This is going to get rid of frivolous lawsuits,” Alvarado told lawmakers last year as they established the panels.

The law has created a large backlog of several hundred malpractice cases awaiting assignment and review by state-appointed panels before they can proceed to court, while relatively few cases have been decided.

“The medical review panels are all about delay,” said Lexington attorney Christopher Goode, who has represented nursing home residents and their families.

“For nursing home plaintiffs who are elderly or sick, it’s even more punitive because you’re basically running out the clock on them,” Goode said. “If they haven’t died already as a result of whatever happened to them in the facility, making them wait nine months or more just to get in the courthouse door is certainly meant to be a roadblock.”

Alvarado also has pushed for a constitutional amendment to limit the damages that can be collected from malpractice suits; a requirement that the suits begin with an “affidavit of merit” from expert witnesses vouching for each claim; and a cap on plaintiffs’ attorneys’ fees in such cases, among his other malpractice-related bills.

Alvarado has skin in the game.

He is employed as the medical director at five Central Kentucky nursing homes whose quality was rated this year as “below average” or “much below average” by the U.S. Centers of Medicare and Medicaid Services based on annual inspections. They are Mayfair Manor, Cambridge Place and Providence Pine Meadows in Lexington, Fountain Circle Care and Rehabilitation Center in Winchester and Diversicare of Nicholasville.

These five nursing homes racked up $416,903 in combined fines over the last three years after state inspectors cited them for serious problems, such as mass scabies outbreaks among residents, medication errors and accidental choking deaths.

These are the kinds of places that tend to get sued.

The 179-bed Fountain Circle, for example, which is rated “below average,” settled a wrongful death lawsuit for an undisclosed sum this year with Glynda Bowling over the 2017 death of her 84-year-old husband.

Sheridan Bowling entered Fountain Circle for physical therapy following an illness. He died 17 days later from a brain bleed resulting from a fall, his widow said in a recent interview. During his brief stay, she said, the inadequately staffed facility kept Bowling “drugged up like a zombie.” He never started rehabilitation and ended his life covered in large bruises that nobody could explain, she said.

“I was not happy with Fountain Circle at all,” Glynda Bowling said. “I knew I was going to lose my husband at some point, but not under those circumstances. The way he died was terrible.”

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Fountain Circle Care & Rehabilitation Center in Winchester is rated “below average” by the U.S. Centers of Medicare and Medicaid Services.
Charles Bertram cbertram@herald-leader.com

A similar account is given by Tonya Damrell-Frye, whose mother, Virginia, died in 2016 at the age of 70 after about a month’s stay at Fountain Circle.

Damrell-Frye said her mother was “drugged up so heavy” on anti-psychotic medicine, because staff didn’t want to deal with her dementia-affected behavior, that she suffered from pulmonary aspiration, inhaling food and water into her lungs. (In its quality ratings, the federal government this year found that 31 percent of Fountain Circle’s long-term residents are given anti-psychotic medication, twice the national average for nursing homes.) She also was allowed to fall out of her bed, hurting herself, Damrell-Frye said.

“It was always very understaffed,” said Damrell-Frye, who in August settled a wrongful death suit with Fountain Circle on behalf of her mother’s estate for an undisclosed sum.

“When I was there, I always had to do everything for my mother,” Damrell-Frye said. ”I had to bathe her if I wanted her bathed. I had to change her into clean clothes. Otherwise, she would have just gone filthy. That’s pretty much how it went for all of the residents there. They hardly had anyone working, and the people they did have didn’t seem to care about the patients at all.”

Fountain Circle’s owner, Louisville-based Signature Healthcare, said in a prepared statement that it could not comment directly on the allegations made in those two cases.

“But as a company and as individual team members, our care teams strive every day to provide the best resident care possible and to enhance every resident’s quality of life,” the company said. “Sometimes we do not meet resident or family expectations, and we are thankful when concerns are brought to our attention.”

“Because many of our residents are elderly and among the most vulnerable in our communities, their numerous health issues and related challenges may ultimately lead to situations and outcomes that can be understandably difficult to grasp for their families and loved ones. We’re not perfect and there are no perfect answers for residents who face such vulnerabilities,” it continued.

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Signature Healthcare CEO Joseph Steier during an interview with the Lexington Herald-Leader.
Charles Bertram cbertram@herald-leader.com

Bowling said that when she enrolled her husband at Fountain Circle, the admissions officer mentioned that the facility’s medical director was Ralph Alvarado, the local state senator, although she never met him during her husband’s stay.

Bowling has strong feelings about Alvarado’s legislative efforts to shield nursing homes.

“It’s a conflict of interest if you’re a state senator and you work for a nursing home that’s getting sued a lot and you’re trying to pass laws that make it harder to sue nursing homes. I mean, that seems plain to me,” she said.

“I can tell you this, the nursing home companies, they’re a business,” she said. “They’ve got their owners and their shareholders and all they care about is the bottom line, making as much money as possible. So they definitely are not on the same side as the patients.”

First elected to the Kentucky Senate in 2014, Alvarado is vice chairman of the Senate Health and Welfare Committee and co-chairman of the legislative committee that oversees the state’s Medicaid program, the primary funding source for nursing homes. He stands for re-election in November in a district that includes Fayette, Clark and Montgomery counties, challenged by Democrat Denise Gray of Mount Sterling.

In an interview, Alvarado said his legislation presents no conflict of interest. His push against medical malpractice lawsuits benefits the entire health care industry, not him exclusively, he said.

“The things I’m trying to get passed aren’t just for nursing homes, they’re for anybody who is involved in the health care profession,” said Alvarado.

“It’ll involve dentists, it’ll involve physical therapists, it’ll involve hospitals, it’ll involve nurse practitioners, physicians, nurses,” he said. “Anybody who’s involved in health care overall. The bills I’m filing are not specifically for nursing homes. But there’s a problem in the health care industry when it comes to liability issues, and some of the more glaring data does come from the nursing homes.”

Under the Kentucky legislative ethics law, lawmakers can’t participate in the passage of bills that would benefit them in their private sector employment. However, the Legislative Ethics Commission traditionally interprets that to mean that lawmakers cannot uniquely gain an advantage from a bill. It’s considered ethically acceptable if their entire industry benefits.

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State Sen. Ralph Alvarado, R-Winchester, has sponsored several bills in the Kentucky legislature to make it harder to sue nursing homes for negligence or wrongful death. In his private life, Alvarado works as medical director for five low-rated nursing homes in Central Kentucky.
LRC Public Information Office

Alvarado acknowledged that nursing homes where he works have earned low overall quality ratings from the federal government in recent years.

“That’s part of me being hired there at these facilities, is what I would argue,” Alvarado said.

As medical director, he said, he’s trying to improve medical outcomes for residents in ways that gradually are raising the facilities’ quality measures. One of his nursing homes, Providence Pine Meadows, recently completed a state inspection free of deficiencies, “and we’re very excited about that,” he added.

“A lot of my facilities, their quality measures are much better,” Alvarado said. “It’s still a culture change in some cases. But if you don’t have a medical director in there pushing improvements and driving quality, looking at your return-to-hospital rates, at lowering your antibiotic use, at infection rates, at wound care, all those things, then that trickles down.”

Alvarado said he’ll keep fighting in future legislative sessions for restrictions on what he calls “bogus” medical malpractice litigation, although the Kentucky Constitution erects a hurdle. It guarantees Kentuckians a right of access to the courts without “denial or delay,” which is why measures like his medical review panels can be challenged in the courts on constitutional grounds.

The Kentucky Supreme Court is expected to rule on the legality of medical review panels in the near future. The state’s nursing home lobbying group filed a friend-of-the-court brief arguing for the panels to be upheld.

“If they wind up finding it unconstitutional, then I think the next step — and again, the state has passed caps on damages in the past, and that was found unconstitutional — then the next step is changing the Constitution,” Alvarado said. “Let the voters decide if they want to have this or not. If they don’t want to do it, then, you know, it doesn’t happen at that point.”

Goode, the Lexington lawyer for nursing home residents and their families, said politicians like Alvarado “throw around words like ‘frivolous lawsuits’ without really knowing what they’re talking about.” Given the need for research and expert witnesses to prepare a malpractice case, it’s not uncommon for a plaintiff’s attorney to spend $50,000 to $100,000 before trial, Goode said.

“Why would I — or anyone, for that matter — put that kind of investment into a case if I wasn’t reasonably certain based on the facts that I was going to win?” Goode said. “Juries don’t give verdicts in the millions of dollars — the kinds of verdicts we keep hearing complaints about — for cases that are frivolous. They give those verdicts in cases where someone was seriously harmed.”