Parker Waichman LLP Injury Alerts
NURSING HOMES: BIG BUSINESS, BIG PROBLEMSFeb 1, 2003 Make no mistake about it; nursing homes have become big business. As the baby boomer generation ages, there will be more people going into nursing homes than ever before. The demands placed on the medical system to care for the elderly are also becoming overwhelming. There are over 34 million people over the age of 65. Nearly one in twenty will require some form of assisted living. Presently there are over 1.5 million elderly and dependent adults living in nursing homes throughout the country.
"Unlawful abuse and neglect is widespread, underreported, infrequently prosecuted and the cause of untold suffering, injury, illness and death," states Marie-Therese Connolly, Head of the U.S. Department of Justice, Nursing Home Initiative. One of the most difficult things a family ever faces is the decision to place a loved one in a nursing home. Unfortunately, families are usually unable to cope with the stress and demands created by the situation. The person's physical or mental condition often requires the type of 24-hour professional care only available in a nursing home or other eldercare facility.
Once the decision is made to place a loved one in a nursing home, however, there may be serious problems which the family never anticipated. Inadequate or substandard care, negligent treatment, or criminal conduct by nursing home employees may add to the family's feelings of guilt, anxiety, and fatigue. Fortunately, there are many ways to improve, avoid or deal with these problems.
Residents who have families and friends who visit or telephone often and call attention to problems usually get the best care. It is extremely important that families and friends take an active role in the care and management of the person involved. Sometimes problems can be resolved by discussing them directly with individual staff members. Misunderstandings and confusion caused by the patient's inability to communicate clearly are sometimes able to be resolved in this manner as are special needs that the patient may have. Unfortunately, because of shift changes, employee turnover or unqualified care givers, this may not be a viable solution. There are also many cases where the resident has already been abused or sustained serious injuries. These situations generally require action by the facility, outside government agencies or legal proceedings.
Some 5,283 nursing homes were cited for abuse violations, according to a review of state inspection records requested by Rep. Henry Waxman (D-California). These homes were cited for nearly 9,000 abuse violations from January 1999 to January 2001.
"We found examples of residents being punched, choked or kicked by staff members or other residents," Waxman said.
The problems related to substandard care and criminal conduct are on the rise and present a matter for concern throughout the country generally and in New York State, in particular. The steady increasing number of deficiencies cited by the N.Y.S. Department of Health (DOH) is alarming. Fines for facilities not correcting violations have also dramatically increased and the number of complaints alleging patient abuse nearly doubled between 1993 and 1999. Nursing homes in New York State are being cited more than the national average in a number of key, quality measuring, areas including pressure sores (decubitus ulcers), dehydration, and failure to do pre-screenings on prospective employees. The National Center for Elder Abuse reports that neglect of our senior citizens' basic needs is the number one type of elder abuse. Physical abuse by caregivers ranks as the second most common form of elder mistreatment. Almost one million senior citizens are victimized each year.
Most nursing home residents are dependent on the staff for almost all of their daily needs. Because of poorly trained and insufficient staffing at many homes, residents do not always receive the care and attention they so greatly need and require. Unfortunately many nursing home owners have become more interested in profits than in providing proper care to their residents.
Not all staffing problems result directly from worker shortages. For many for-profit homes, the issue comes down to the bottom line. For-profit homes, on average, have almost 32% fewer nurses and 12% fewer aides than nonprofit homes, according to a study published in the American Journal of Public Health.
"When for-profit chains under staff their facilities and underpay their workers, the chain makes money but the quality suffers," said Dr. Steffie Woolhandler, Associate Professor of Medicine at Harvard Medical Center and co-author of the study.
Last year, the U.S. Department of Health and Human Services reported to Congress that over 90% of nursing homes lacked enough employees to provide adequate care and that most would have to increase staff by at least 50% to do a proper job.
Nursing home operators agree that staffing is a problem and point to a nationwide worker shortage that plagues the entire health care industry, including hospitals. Many people are unwilling to accept poverty-level wages for work that many consider unpleasant and demeaning. Because the industry says it lacks enough government money to provide proper care, managers frequently employ skeleton staffing.
Abuse in Nursing homes includes the following:
* Sexual Assault
* Sexual Battery
* Unreasonable physical constraint, or prolonged or continual deprivation of food or water
* Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorized by the physician
Neglect in Nursing homes includes the following:
* Failure to assist in personal hygiene, or in the provision of food, clothing or shelter
* Failure to provide medical care for physical and mental health needs
* Failure to protect from health and safety hazards
* Failure to prevent malnutrition.
* Failure to provide proper nutrition and hydration
* Failure to assist in personal hygiene when needed
* Over-medication or under-medication
* Failure to take reasonable precautions to prevent falls
* Failure to answer call lights in a timely fashion
* Failure to turn residents in their beds (leading to pressure sores)
* Failure to take residents to the toilet (leaving them in soiled garments or beds)
* Slapping or other physical abuse of the resident
* Use of unwarranted chemical or physical restraints
* Emotional or verbal abuse of the resident
* Retaliation for making a complaint or filing a grievance
* Failure to take adequate precautions to prevent injury to the resident
* Failure to provide for appropriate medical care
* Sexual assault or rape of the resident
* Theft of the resident's money or other personal property
Unfortunately many of the residents of nursing homes are unable to express the manner and ways in which they are being abused. Many residents suffer from such debilitating illnesses as Alzheimer's and dementia and are unable to verbalize their complaints. Others who do verbalize their complaints are all too often ignored by nursing home personnel. It is therefore imperative that families take an active role in both choosing a nursing home and ensuring that loved ones who are already in a home receive the type of quality care they deserve.
Once a determination is made that a loved one would be best off in a nursing home, there are several steps that should be taken in assessing the quality of care provided by a nursing home. A very proactive approach should be taken in determining if a particular nursing home is right for your loved one. A visit should be made to the facility where you should speak with current residents and carefully observe their physical condition. You should observe their hygiene, physical condition and their ability to converse. Do not limit your conversations and observations only to those residents the nursing home wants you to see or speak with.
Tour the entire facility taking notice of the smell of feces or urine. This might indicate that residents are not being attended to as quickly as they should be. During your tour of the facility look to see that pitchers with fresh water are available to the residents. Note whether the aides are assisting the residents who are unable to do things for themselves, such as pour themselves a glass of water or walk to the bathroom Ask detailed questions about the staffing levels for the different shifts, and how many of the staff are certified nursing assistants. Visit the facility during the different shifts to see what the staffing levels are. Make observations as to how time the aides spend with each resident, and how much food is actually eaten. Also check on the residents that are being fed in bed. Make sure that the trays are not just being left in front of them and that one of the aides is actually assisting them with their meal. Inspect the dining facilities and observe a typical meal. Ask to see a meal plan. You might want to eat one of the meals yourself. It is also imperative that you speak with the family or friends of other residents in the home. Find out what their experiences have been with the home and its employees.
The area of nursing home abuse and neglect is a very real one, which you as the family member must be keenly aware of and take a proactive role in preventing from happening to your loved one. This is especially true since many residents may be unable to communicate the abuse or neglect they are being subjected to. This requires frequent visits to the home.
In addition to those observations that may be readily apparent, there are other signs to look for which may be indicative of physical, verbal or emotional abuse to a resident of a nursing home. Take note if the resident appears to be emotionally upset or agitated, withdrawn or non-communicative, behaving strangely or isolated from the other residents. These could all be tell-tale signs of problems occurring. Nursing home residents find themselves the victims of numerous medical conditions, injuries and sometimes death, due to the negligence of nursing home staff in failing to properly care for the residents. You have the right to take legal action against these nursing homes for their negligence and be compensated. This will be addressed later in this Newsletter.
The following medical conditions are all too often prevalent in nursing homes:
Pressure (or decubitus) Ulcers also referred to as bed sores: Bed sores are a terrible injury that develops when the blood flow to raised parts of a largely immobile person's body areas is reduced or cutoff all together. The interruption in blood flow often develops in bedridden nursing home residents. The pressure from a bed on a person for a long period of time causes the blood supply to skin to be interrupted, causing the skin to die and become a bedsore. Bedsores can be prevented by a combination of good hygiene and frequent shifting of the immobilized person.
"Bed sores" can also result from sitting for a prolonged period of time, thus they are often called pressure sores. Pressure sores can develop in several areas when a person is in bed. These sores may be located on the hip-bone area, the lower back, and tailbone. The sores can also develop in many other parts of the body, depending on how the person lays. They may be found on the spinal area, heel, ankles, knees, and shoulders. These sores often result in significant pain and may require a hospital visit, and as with any injury to an elderly person will require a long recovery period. Bedsores can also lead to fatal complications from infection.
Bed sores are a common problem in nursing homes, with most of the victims over the age of 70. The U.S. Department of Health & Human Services found that 12% of nursing homes did not properly treat pressure sores. The presence of bed sores can be an objective indication that an elderly loved one is not being properly cared for. If they are confined to bed, chair, or wheelchair, they are at greater risk for bed sores and pressure injuries. The nursing home staff has a responsibility to move the person and make sure they do not sustain these highly preventable injuries which could progress into extremely serious conditions.
Unfortunately, understaffing leads to resident inactivity. Thus, rather than seeing residents enjoying assisted walks or activity in an available exercise or rehabilitative facility, you may observe large numbers of residents simply sitting in wheelchairs watching television for extended periods of time without any physical activity at all.
Bed Injuries: Between 1993-1996, there were 74 reported of death from strangulation or suffocation involving hospital beds.
Falls: Falls are the most frequent causes of fractures in the elderly. All too often residents are not properly supervised or assisted in such activities as getting in and out of bed or going to the bathroom, resulting in falls.
Malnutrition: Malnutrition can lead to infections, confusion, muscle weakness, and, in extreme cases, death. Other sequellae of malnutrition are pressure ulcers, falls, pneumonia and weakened immune systems. Too often, nursing home residents' nutritional health is either ignored or not properly monitored by the nursing home staff. Malnutrition can reduce immunity to infections to an almost AIDS-like state and can quickly cause loss of muscle strength, which can lead to increased frailty, pneumonia, kidney and liver failure, and death.
Death: Thousands of America's elderly mothers, fathers and grandparents are being killed each year in the nation's nursing homes - frail victims of premature and preventable death. This quiet pandemic is rarely detected by government inspectors, investigated by law enforcement, appraised by medical examiners or prosecuted by anyone. These deaths are not at the hands of crazed "angels of death."
Most are caused by fatal neglect traced to caregivers upon whom residents depend for food and liquid and for turning them in their beds to prevent the formation of life-threatening sores, say investigators and leading researchers in elderly care.
1. Donald Mallory, lost 40 pounds in a 37-day stay in the former Claywest Nursing Home in St. Charles. Court records state that Mallory, 60, was dehydrated, malnourished and rife with infection from bedsores when he died. Doctors who reviewed Mallory's medical records for a lawsuit said neglect caused his death.
2. Ruby Faye Martin, 88, died in Mount Vernon Countryside Manor in Mount Vernon, Ill., of sepsis, an overwhelming bacterial infection that poisons the blood. An evaluation of her medical records by a doctor who specializes in medical problems of the elderly stated that the death was caused or exacerbated by malnutrition and multiple infected bedsores caused by poor care at the nursing home. A home official declined to comment.
3. Rex Riggs was in stable condition when transferred to Beverly Healthcare nursing home in Neosho, Mo., according to Veterans Administration doctors. Six weeks later, the disabled Vietnam War veteran, only 57, was hospitalized with gangrenous infections that led to the surgical removal of his scrotum, penis and lower abdomen. He died three days later. Federal investigators said bad nursing care caused his death.
The latest national compilation of more than 500,000 nursing home deaths - for 1999 - lists starvation, dehydration or bedsores as the cause on 4,138 death certificates. The data, collected by the National Center on Health Statistics, include 138 such deaths in Missouri and 186 in Illinois.
"We know it's significant," said Democratic Senator John Breaux of Louisiana, noting that investigations by his staff and other research show that 500,000 to 5 million cases of elderly neglect and abuse take place in institutions and private homes each year, although about 80 percent go unreported. "The number of avoidable deaths of our elderly could be in the tens of thousands," said Breaux, who along with Republican Senator Orrin Hatch of Utah last month introduced the Elder Justice Act, which seeks to prevent such deaths.
Many medical and regulatory investigators who work in nursing homes every day characterize the number of wrongful deaths in terms such as "massive" and "pervasive," based on their daily experience. Most of the deaths can be traced to an inadequate number of nurses and aides to provide life-sustaining care. The U.S. Department of Health and Human Services reported to Congress this year that 90% of nursing homes have staffing levels too low to provide adequate care. Many of these deaths are covered up by the nursing homes. "The families were being told by the nursing homes that their loved ones died of heart attacks, strokes and other natural causes, but what we actually found was that about a third were wrongful and preventable deaths, either caused by or exacerbated by dehydration, malnutrition, including choking, or from sepsis from bedsores," said Malcolm, who was just appointed to the U.S. Department of Justice's newly formed forensic working group.
An examination by the Post-Dispatch of hundreds of these court cases across the nation found that the vast majority of death certificates attributed the deaths to natural causes such as pneumonia, heart attack and - in some cases - "cessation of breathing," "heart stopped," "old age" or "body just quit." "Our staff examines hundreds of alleged wrongful nursing home deaths a year, and only a handful of the death certificates reflected what medical records showed actually killed the person," said attorney Tim Dollar. "Some physicians go to amazing lengths to avoid admitting that by omission or commission, the nursing home killed these people.
"The Post-Dispatch examined the death certificates and the physicians' evaluations of 55 nursing home residents in Missouri and Illinois who died in the past two years and whose relatives decided to sue for neglect. In 42 of the cases, the newspaper found that the cause of death listed on the certificate differed from what physicians said the medical records actually showed. In 40 of these cases, the nursing homes involved agreed to a settlement with the family before trial or were found in civil proceedings to have committed neglect.
There are certain tell tale signs to look for in determining if your loved one is suffering from malnutrition or some other preventable or treatable condition.
* Rapid or unexplained weight loss
* sunken eyes
* skin breaking down
* wound not healing properly
* hair thinning
* lips and mouth paleness
* cracks around the mouth
Dehydration can lead to dangerously low blood pressure, which can generate strokes and heart attacks. It also can cause infections, kidney failure, uremic poisoning and death.
* bedsores (also known as "pressure sores", "pressure ulcers", and "decubitus ulcers")
* skin rash
* urine and/or feces odor
* lack of attention to resident's personal hygiene
* falls resulting from lack of adequate precautions or assistance
* skin tears
* bruises, contusions, or lesions
* bone fractures
* significant weight loss
* depression or isolation
* unexplained mood changes
* fear or anxiety
* unexplained refusal or inability to communicate
* presence of unjustified chemical or physical restraints
Patients Rights - In order for nursing homes to participate in the Medicare or Medicaid programs , they must comply with the federal requirements for long term care facilities as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483):
1. They must conduct initially a comprehensive and accurate assessment of each residents functional capacity (42 CFR 483.20)
2. They must develop a comprehensive care plan for each resident (42 CFR 483.20)
3. They must have sufficient nursing staff (42 CFR 483.30)
4. They must prevent the deterioration of a residents' ability to bathe, dress, groom, transfer and ambulate, toilet, eat and communicate. (42 CFR 483.25)
5. They must provide, if resident is unable to carry out activities of daily living , the necessary services to maintain good nutrition, grooming and personal oral hygiene (42 CFR 483.25)
6. They must ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR 483.25)
7. They must ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and service to promote the healing, prevent infection, and prevent new sores from developing (42 CFR 483.25)
8. They must provide appropriate treatment and services to the incontinent residents to restore as much normal bladder functioning as possible. (42 CFR 483.25)
9. They must ensure that the resident receives adequate supervision and assistance devices to prevent accidents (42 CFR 483.25)
10. They must maintain acceptable parameters of nutritional status (42 CFR 483.25)
11. They must provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR 483.25)
12. They must ensure that residents are free of any significant medication errors (42 CFR 483.25)
13. They must promote each residents quality of life (42 CFR 483.15)
14. They must maintain the dignity and respect of each resident. (42 CFR 483.15)
15. They must ensure that the resident has the right to chose activities, schedules and health care (42 CFR 483.40)
16. They must provide pharmaceutical services to meet the needs of each resident (42 CFR 483.60)
17. They must be administered in an manner that enables the nursing home to use its resources effectively and efficiently (42 CFR 483.75)
18. They must maintain accurate, complete and easily accessible clinical records on each resident (42 CFR 483.75)
19. Nursing home patients have specific rights, including:
o access to information
o participation in care
o ability to make independent choices
o privacy and confidentiality
o dignity, respect and freedom
o security for possessions
o transfers and discharges
o concerns and complaints
If you believe, suspect, or know that a friend or loved one is being abused, mistreated, neglected or otherwise negligently cared for at a nursing home, you have remedies. You may:
* Go to the administrator or director of the home with your concerns.
* Make a complaint to the appropriate agency in your city or state.
* Complain to the patient's advocate if one is assigned to the home.
* If a crime is involved, go to the appropriate law enforcement agency for the town, city, or state in which the facility is located.
* Consult a law firm, like PARKER & WAICHMAN, that is familiar with the subject and which can effectively represent the rights of the resident and his or her family, and pursue all appropriate legal remedies, including monetary compensation.
As always, the law firm of PARKER & WAICHMAN remains committed to fight for the rights of all injured parties but, especially for those who cannot fight for themselves. Nursing home abuse is a terrible thing to suffer or to watch a loved one endure. This does not have to be, however. Please call PARKER & WAICHMAN or visit our website immediately for the help you are entitled to.
For further information regarding the rights you or your loved one may have with respect to this matter contact PARKER & WAICHMAN immediately by calling 1-800-YOURLAWYER or visiting http://www.yourlawyer.com.