Newbury Park nursing home pays in class-action settlement

June 14--A highly-rated Catholic nursing home in Newbury Park has agreed to pay $345,000 and will undergo spot inspections of health records in the settlement of a class-action lawsuit alleging patients were being given powerful drugs without required consent.

The long-awaited settlement was approved by Ventura County Superior Court Judge Rocky Baio in May and involves the nonprofit Mary Health of the Sick Convalescent and Nursing Hospital and family members of former residents of the facility. It calls for the nursing home to use procedures to ensure doctors explain the benefits and risks of psychotherapeutic drugs to residents or their legal representatives.

Those discussions encompass drugs that carry black box warnings of extreme side effects and increased death risks for patients with dementia.

"I'm an only child and my dad was the whole world. I trusted them with his life," said Melisse Sullivan of Thousand Oaks, alleging her father was prescribed black box drugs at Mary Health of the Sick without her informed consent. "I just want them to be held accountable. I just don't want it to happen to anyone else. That's my point."

Representatives of the nursing home -- run by nuns from the Servants of Mary, Ministers of the Sick, who live on the premises -- denied all allegations of wrongdoing as part of the settlement. They said they agreed to the settlement to avoid the costs, risks and distraction of continuing a legal fight that started nearly five years ago.

"Anyone can say anything they want in a complaint," said Dawn Phleger, a San Diego lawyer who said the decision to settle was aimed at allowing the sisters to focus their resources on care, not litigation.

"The sisters had a really good reputation in the community and we wanted to make sure they were able to keep that reputation going," she said. The nursing home has a five out of five stars rating from the federal agency that runs Medicare and Medicaid.

Plaintiffs say the high rating attracted them. But they alleged doctors at the nursing home prescribed powerful drugs without discussing the impact of the drugs to residents, family members or people with power of attorney designations.

Read more: Judge certifies class-action lawsuit against Mary Health of the Sick

Read more: Ventura nursing home settlement finalized

The lawsuit alleged nursing home staff members filled out forms stating they confirmed the doctor received consent when they knew it was untrue.

"We were very explicit in telling them not to give her any painkillers except aspirin, not antipsychotic drugs, nothing," said Tim Kennaley of Mariposa. He alleged his mother, Evelyn Kennaley was administered Norco, Lexapro and the anti-anxiety medication, Restoril, after going to the nursing home to rehab after an extended stay at Simi Valley Hospital.

"They think they have every right to give drugs to the patient," he said, contending doctor discussions with the family were bypassed.

"We never saw the doctor when we were there," he said.

Evelyn Kennaley died in at Los Robles Hospital & Medical Center on March 6, 2012, three days after being taken to the hospital from Mary Health of the Sick.

Phleger said the sisters contested all accusations that they didn't obtain necesssary consent. She contended the sisters would have prevailed if the case went to court.

"We don't think there was truly any substance that would rise to liability for the sisters," she said.

In the settlement, 57 former nursing home residents who received psychotherapeutic drugs over a three-year period stand to receive $500 each in an amount limited by state law. The two families that led the legal fight will each receive $5,000.

The settlement dictates $228,500 goes to legal fees for the plaintiffs with $35,000 going for costs.

Plaintiffs said they're more interested in changes in procedure at the nursing home mandated by the settlement.

Sullivan's father, Chris Mehlum was an MIT engineering graduate who came to the nursing home's memory care floor in 2011. According to the lawsuit, his conditions included dementia, depression and anxiety.

Sullivan said Mehlum was given drugs including Prozac, Ambien and Vicodin. Instead of a doctor explaining the impact of medication, she said staff would call her after prescriptions were administered.

"They just told me to come in and sign the consent forms for the drugs he was given, the black box drugs," she alleged. He died in February 2014 at the age of 87 in a private group care facility.

The use of powerful drugs and questions about informed consent are national issues. The law requires that doctors discuss certain medications before they are prescribed, also requiring nursing homes to verify that such conversations happen, said Jody Moore, the elder abuse lawyer who litigated the class-action lawsuit.

In many facilities, that process isn't always followed, she contended.

As part of the settlement, Mary Health of the Sick will send "Dear doctor" letters informing their physicians on the law regarding the use of certain medications and what constitutes informed consent.

The settlement also dictated the form the nursing home will now use to verify that a care provider has received informed consent.

An independent monitor will make four unannounced visits to the nursing home over at least two years and review paperwork showing the facility's records in obtaining consent.

Moore said the legal mandates are rare. Phleger said the procedures are not new and have been used at Mary Health of the Sick and other care facilities.

Some of the plaintiffs complained about how long it took to settle the case. Gary Kennaley, who was a plaintiff along with his brother, Tim, wonders about the future.

"I am glad it's settled," he said. "I just hope it doesn't get put in a shelf and forgotten."

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