Parker Waichman LLP Injury Alerts
Nursing Home Industry Still Plagued by Widespread Problems and Poor Governmental SupervisionFeb 1, 2007
The Latest Investigation
Although Congress passed legislation in 1987 to improve nursing home care and facilities, incidents of abuse, neglect, remain at an unacceptably high level especially in for-profit chains which now dominate the industry.
The results of a recent investigation conducted by Consumer Reports showed that non-profit homes are more likely to provide adequate and above adequate treatment for its residents in comparison to for-profit homes. Also, nursing homes that are independently operated, as opposed those that are part of a chain, provide better overall resident care.
In another Consumer Reports’ study, it was found that many states are far too lenient and slow in reacting to complaints concerning facilities that have a history of substandard care. In fact, many incidents of abuse, neglect, and other maltreatment often go unreported, uninvestigated, uncorrected, and unpunished.
Investigators at Consumer Reports reviewed the three most recent state inspection reports for over 16,000 nursing homes in America. They also examined the number of staff members and the risks presented to patients based on the quality of care. To help reveal the truth about nursing homes and elder care facilities, the Consumer Reports Nursing Home Quality Monitor was put in place to examine and list facilities in every state and rate them on a best-to-worst scale.
The Consumer Reports Nursing Home Quality Monitor reviewed three factors of quality:
- Only specific quality-of-care deficiencies were examined; particularly those given for substandard quality of care, for putting residents in immediate danger or causing actual injury, and for failing to make the state inspection survey accessible to all nursing-home residents and their families. They also took into account total deficiencies and reviewed the results of the three most recent surveys to see if the nursing home was in complete compliance with federal regulations. Each total score for a facility reflected the Consumer Reports investigators’ judgment about the importance of each citation. Then all the weights for the deficiencies were added together. The deficiencies were also listed according to how recently they occurred.
- Consumer Reports for three types of staffing levels--RNs, LPNs/LVNs, and nurse's aides. A single total of nursing hours was developed to give one staffing score to each home, which was measured in hours of nurse staffing per resident day.
- Since nursing homes are now required by law to report to the CMS certain quality indicators, this can help indicate whether a facility is taking care of patients adequately. The Consumer Reports quality monitor looked at the number of residents in the home who; were at high risk for pressure (decubitis) ulcers and who had a pressure ulcer, the number of residents who spent most of their time in bed, the number of residents who experienced a decline in their ability to move about independently, the number of residents who were at low risk for incontinence but became incontinent, and the number of residents who declined in the activities of daily living between the two most recent assessments available to the Centers for Medicare & Medicaid Services (CMS).
The Consumer Reports’ list has existed since 2000 and there has been little in the way of positive reports and markers of change over that six-year period. In fact, 186 homes mentioned for providing inadequate care on this list have appeared on previous lists of sub-standard homes.
As the report notes, one example of such a home is the White Blossom Care Center in San Jose, California. Outwardly, it appears to be an inviting facility. Even inside, it seems to be in compliance with applicable regulations. Yet White Blossom, is one of 12 nursing homes that have been on the lists of poorly performing homes five years in a row.
Some of the inadequacies include repeated failures by aides and nurses to follow doctors' orders with respect to performing pain assessments, monitoring pressure sores, and screening for tuberculosis among other things. Also it seemed that dishes and utensils were not properly sanitized. One extreme case of neglect involved a stroke victim with swallowing problems who was left unsupervised with mushy material in her mouth. After hearing about these citations, White Blossom’s management said that it is planning to correct the deficiencies.
This Consumer Reports’ survey is supposed to be "readily accessible" in every nursing home according to federal law. Yet, it was not visible in the lobby when a Consumer Reports’ representative arrived at White Blossom. It was only presented to her after she insisted on viewing the document. According to the person at the front desk, the report was not initially available because “it was being used by someone else at the time.”
White Blossom administrator, Steven Earle, refused to comment about the citations but said that the appropriate connections had been made.
In addition to White Blossom, there are 657 homes across the country cited for not making the inspection results readily accessible.
Even though the current information suggests that non-profit establishments provide consistently superior care, they only account for a small portion of the industry. Since Medicaid was established in the 1960s, for-profit homes have come to dominate the field.
When Consumer Reports examined Medicaid reimbursement for nursing homes in 2002, there was no evidence that the average state Medicaid payment to nursing homes had a major impact on the percentage of homes that did not perform up to standards.
Bruce Yarwood, president and CEO of the American Health Care Association (AHCA), argues that poor homes are a "chronic, tough issue." He goes on to say that many for-profit nursing home executives have trouble escaping Wall Street's quarterly earnings pressure. According to Yarwood, however, "for every bad story there are probably 50 good ones." Still, the bad stories are what make headlines and create “word-of-mouth” reviews.
Sometimes, the most serious problems sometimes appear in small, for-profit chains within a state. For example, in New York, Healthcare Associates, owned by Anthony Salerno, is responsible for a network of 12 separately incorporated facilities. Salerno is the largest shareholder in each of the facilities. Three of his homes have received negative press and citations over the past few years.
While Attorney General, Eliot Spitzer, now New York’s Governor, sued the Jennifer Matthew Nursing and Rehabilitation Center in Rochester, alleging abuse and neglect. Using a hidden camera, investigators showed that call bells for emergencies were placed out of residents' reach. Also, patients would be neglected and would often go unturned and unwashed for hours. The ongoing legal case has yet to be settled and at the time, a lawyer for Jennifer Matthew Nursing Home did not respond to requests for comment.
Independently owned, non-profit facilities are often able to employ more staff members, which may account for the heightened level of resident care. Consumer Reports found that, on average, non-profit facilities offered an additional hour of nursing care each day per resident when compared with for-profit facilities. Also, registered nurses provided nearly twice as much care and attention in non-profit facilities.
In 2002, a study conducted for the Federal Centers for Medicare & Medicaid Services (CMS) found that, without a daily average of 2.8 hours of care from nurse aides and 1.3 hours from licensed nurses, residents were more likely to experience adverse effects such as pressure sores and urinary incontinence. The fact is that most nursing homes do not employ a sufficient number of staff members to meet those average care thresholds.
At this time, however, the CMS has not drafted minimum staffing standards. Marvin Feuerberg, a technical director at the CMS, says the document regarding staffing numbers that was given to Congress in 2002 was essentially a “watered down version.” Current regulations say that “staffing must be sufficient to meet the needs of nursing home residents.” Since this standard is so unclear, it makes it difficult to discipline nursing homes that do not provide adequate and acceptable care.
The confusing and rather illogical aspect of the current legislation is that it requires nursing homes to have 8 hours of registered nursing and 24 hours of licensed nursing coverage per day. That standard, however, applies to all nursing facilities, regardless of how many residents they have. Therefore a nursing home with 200 residents can “legally” have the same-size staff as one with 20.
As the public’s awareness of nursing home inadequacies increases, more and more residents and their families are coming forward to reveal shocking stories of deplorable conditions, maltreatment, and abuse. For example, Glen Barnhill, 46, of Nashville suffered a gunshot wound to the head. He lived in Tennessee nursing homes for several years as a quadriplegic that required the use of a ventilator to breathe. Barnhill said he would sometimes go into respiratory distress while waiting for a call light to be answered. "I'd be in bed gasping and fighting for air, not knowing when the nurse would come," said Barnhill.
While nursing homes do not give large sums of money to national political campaigns, they do make local donations of up to $3000 which give them considerable clout with gubernatorial, state legislative, and judicial candidates.
In Arkansas the nursing home industry, specifically the Arkansas Health Care Association, gave about $100,000 to state candidates in 2004. "They contribute a large amount of money to people's campaigns," says Democratic state Senator Mary Anne Salmon. "Nursing homes have stopped some very good legislation that would have made things better for the elderly,” adds Salmon.
Grachia Freeman, a former nursing home inspector in Arkansas, says that supervisors would not let her list negative citations for a facility she was inspecting. "They were angry with me for investigating and told me not to complete the survey," says Freeman.
According to the CMS, The number of deficiency citations listed by state inspectors has increased 7.6 percent since 2003. Yet these citations are still being “watered down.” Citations all come with a letter code from A through L. Citations labeled G through L indicate the presence of harm or potential for death of residents. Codes I through L indicate that the harm affected many residents. The problem is that, now, state inspectors are documenting fewer of the more serious deficiencies.
In 2000, 40 percent of all deficiencies carried a D designation. By 2005, the number had risen to 54 percent. One analyst argues that there is intense and real pressure from nursing homes on understaffed state agencies which make it hard to come up with the resources to defend their citations in court.
When a violation is cited, nursing homes should prepare a "plan of correction." This means that the nursing home admits there is a problem and resolves to fix it within a designated period of time. Still, even when problems are corrected, they often resurface; a trend regulators are calling “yo-yo compliance.”
Even though the 1987 nursing home legislation indicated there would be monetary fines imposed by states and the federal government, these fines are not consistently collected. In fact, last year the federal Office of the Inspector General found that the CMS failed to take all the required steps to collect 94 percent of pre-existing penalties. Sometimes, even when citations are issued, regulators do not impose any fines at all.
In 2003 and 2005, Consumer Reports examined whether states were upholding fines against the list of poorly performing homes. They discovered that the ones that could impose fines were not always following through on their authority. In an earlier study, Consumer Reports discovered that in states that could legally impose fines, only 55 percent of the cited facilities actually had fines imposed. In the most recent analysis, only 50 percent of poorly performing homes were fined.
Surprisingly, 8 of the 12 poorly performing homes on the 2006 list, all of which were 5-time offenders, had not received state fines between 1999 and 2004 while others received minimal penalties. California regulators did fine White Blossom a total of $10,800 during the six years it was on the lists. Even when the fines reached their maximum, they only amounted to a pathetically low $3,600.
The Willow Tree Nursing Center in Oakland, California, however, never quite received an adequate punishment or fine for its violations. In 2001, a 38-year-old paraplegic with poor cognitive ability left the home on a pass. When the resident was not back by 2 a.m., the home's administrator ordered the on-duty nurse not to let him back in. Regulators cited the facility for failing to keep a resident free from mental abuse. A fine of $700 was assessed but the state collected only $455 of that amount and the case was then closed. Over a year later, the state cited Willow Tree for failing to report a claim of abuse within 24 hours. The incident involved a nurse who allegedly put a pillow over a resident's face, and said, "I'm going to smother you," and then left the room laughing after the patient pushed it off. The state collected a mere $600 as a result of that inexcusable incident.
According to David Hoffman, a former federal prosecutor in Philadelphia, "[t]he system hasn't been hard enough on those who view penalties as the cost of doing business.” Hoffman has sued several nursing homes and now works as a consultant with senior care facilities to improve the quality of care.
In certain cases, The CMS can shut down a home from the Medicare and Medicaid programs by cutting off federal funds. But that severe consequence occurs less frequently than in previous years. In 1998, the number of terminations was 51; in 2005 there were only 8. Considering the seriousness of the conduct involved in many cases, especially when abusive or life-threatening situations are identified, this trend is inexplicable and hardly acts as a deterrent.
States also have the authority to close down what they deem to be poorly performing facilities. For example, in 2005, Indiana regulators investigated a complaint that a student nurse’s aide at the Hanover Nursing Center in Hanover had beaten a resident in the face; an infraction that called for immediate investigation of the workers and conditions at the facility.
While a 45-day ban was placed on the admissions of new residents to the home, the ban was lifted after an inspection. When Hanover's license expired, however, state officials refused to grant the facility a renewal. The facility is now appealing the loss of its license and a federal fine of $117,500 for the “immediate-jeopardy” violation. In the meantime, the home continues to operate thereby posing a risk to anyone at the facility or with a family member or loved one living there.
The bottom line is that state agencies which are the ones immediately responsible for overseeing nursing home care all too often fall far short of identifying and correcting serious problems. Inspections are often inadequate and fail to result in appropriate citations, penalties, or fines. When penalties or fines are assessed they often go un-enforced or uncollected. Fewer serious infractions are being noted and in-state political contributions and lobbying activities have compromised both lawmakers and the agencies charged with policing statutory compliance.
As a result, consumers must take a proactive role in selecting the right nursing home for their loved ones and remaining vigilant once a family member is admitted to any facility. Special attention should be paid to non-profit and independently run homes since the are more likely to provide good care.
For more information about individual state regulations, view the highly recommended Consumer Reports website by clicking here.
Very Little Improvement Since Previous Reports
The controversy over the kind of care generally provided at nursing homes is hardly anything new. Many public watchdog groups including Consumer Reports have repeatedly investigated and reported on widespread incompetence, maltreatment and abuse of residents, understaffing, and lax enforcement of regulatory standards by the very agencies charged with policing the industry. (It must be noted that, while investigative reporters have exposed many appalling conditions – negligent and criminal – residents and their families are sometimes offended by what they perceive to be an invasion of their privacy when undercover cameras are used without the permission or knowledge of the residents or their families. In fact, in some states, journalists and their employers have been prosecuted for violating criminal statutes designed to protect people from such unauthorized activities. In addition, their have been instances when what was first believed to have been video or photographic “evidence” of maltreatment or abuse has turned out to be the aftereffects of an unavoidable accident or the resident’s intentional attempts to injure him/herself.)
We, too, have been reporting on this subject for years and, nonetheless, the situation continues to deteriorate rather than improve. In fact, legal cases involving nursing homes and other eldercare facilities have multiplied several fold in the past few years. As a result, many law firms, like Parker Waichman LLP, have added entire legal departments with attorneys and support staff having specific expertise in nursing home litigation in order to handle the dramatic increase in the number of serious cases of nursing home negligence and abuse.
In February of 2003, we reported on the state of nursing home facilities at that time when there were over 34 million people over the age of 65. Nearly one in twenty were expected to require some form of assisted living. Presently, there are over 1.5 million elderly and dependent adults living in nursing homes throughout the country. And that number is growing annually.
"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 disabilities or deteriorating physical or mental condition often requires the type of 24-hour professional care only available in a nursing home or other eldercare facility.
As we previously reported, some of the problems and citaitons caused at these facitilies occur out of misunderstandings and confusion caused by a patient's inability to communicate clearly. These problems are sometimes able to be resolved through improvement in communication procedures and, in this way, special needs individual patients may have are addressed. 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.
The problems related to substandard care and criminal conduct have been rising and present a matter for great 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. These numbers continue to increase according to the most recent Consumer Reports’ article.
Nursing homes in New York State have been 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 caregivers and insufficient staffing at many homes, residents do not always receive the kind of care and attention they so urgently need and require. Unfortunately, it is a sad fact that, many nursing home owners and operators have become more interested in profits than in providing proper care to their residents. Nursing home “chains” are being run more like retail store chains than quasi-medical facilities.
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.
In 2002, 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. Spokespersons for the industry believe the lack of sufficient government funding leads to less than optimum care and the frequent use of skeleton staffs.
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 or maltreated. Many residents suffer from such debilitating illnesses as Alzheimer's disease 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. Be 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. The important thing to remember is that you have the right to take legal action against these nursing homes for their negligence and be compensated. It is not only the government and the state that have the right to intervene.
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 (indoors or outside of the facility) 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 reports 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 potential 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 of these deaths 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 eldercare.
Some case studies we discussed in our previous newsletter, which dealt with nursing homes, illustrate best the outcome of severe negligence and poor conduct in nursing homes.
- 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.
- 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.
- 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.
- Since that last nursing home newsletter their have been literally hundreds of reported cases of deaths and horrendous injuries caused by malnutrition, decubitis ulcers, lack of proper supervision, abuse, negligence, and other preventable causes.
- The national compilation of more than 500,000 nursing home deaths - for 1999 - listed 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.
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 in 2003 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 had just been 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 telltale 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):
- They must conduct initially a comprehensive and accurate assessment of each residents functional capacity (42 CFR 483.20);
- They must develop a comprehensive care plan for each resident (42 CFR 483.20);
- They must have sufficient nursing staff (42 CFR 483.30);
- They must prevent the deterioration of a residents' ability to bathe, dress, groom, transfer and ambulate, toilet, eat and communicate. (42 CFR 483.25);
- 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);
- They must ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR 483.25);
- 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);
- They must provide appropriate treatment and services to the incontinent residents to restore as much normal bladder functioning as possible. (42 CFR 483.25);
- They must ensure that the resident receives adequate supervision and assistance devices to prevent accidents (42 CFR 483.25);
- They must maintain acceptable parameters of nutritional status (42 CFR 483.25);
- They must provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR 483.25);
- They must ensure that residents are free of any significant medication errors (42 CFR 483.25);
- They must promote each residents quality of life (42 CFR 483.15);
- They must maintain the dignity and respect of each resident. (42 CFR 483.15);
- They must ensure that the resident has the right to chose activities, schedules and health care (42 CFR 483.40);
- They must provide pharmaceutical services to meet the needs of each resident (42 CFR 483.60);
- They must be administered in an manner that enables the nursing home to use its resources effectively and efficiently (42 CFR 483.75);
- They must maintain accurate, complete and easily accessible clinical records on each resident (42 CFR 483.75);
- Nursing home patients have specific rights, including:
- access to information
- participation in care
- ability to make independent choices
- privacy and confidentiality
- dignity, respect and freedom
- security for possessions
- transfers and discharges
- 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 LLP, that is fully 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. At Parker Waichman LLP, a complete Nursing Home Unit is staffed and equiped to investigate, evaluate, and litigate any claim involving injured or deceased residents or their estates.
As always, the law firm of Parker Waichman LLP 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 us or visit our website at www.yourlawyer.com to arrange for a thorough case evaluation.