Elder Abuse in State and Private Facilities

Just over 1.4 million people reside in one of the 15,401 certified nursing homes located in the United States at any given time. Slightly over 1 million people reside in Assisted Living facilities (ALFs). Nursing homes and ALFs differ from one another in two primary ways.

Nursing homes are regulated for safety by the federal government whereas ALFs are not, and ALFs are predominantly “private pay’” meaning their residents must pay to reside there either out-of-pocket or through private insurance, whereas Medicare or Medicaid predominantly pay for nursing home care.

A nursing home is a medical provider and an ALF is not, creating important differences in the amounts and types of staff employed by each.

Nursing Home (NH) Assisted Living Facilities (ALF)

Most nursing homes accept Medicare and, as a result, are subject to numerous federal requirements and regulations for quality of care and quality of life ALFs are generally private pay, do not accept Medicare and, as a result, are not subject to federal regulations or requirements with little oversight by government

Nursing homes are subject to specific staffing requirements ALFs generally have no staff minimums

NHs are required to have Medical Directors, physicians who supervise and are responsible for the medical care provided in the facility, Directors of Nursing and Health Care Administrators. ALFs do not have Medical Directors but, rather, may have contract physicians who may see a resident on an as-needed basis and the resident pays extra for this service

Medications in a NH can only be administered by a Licensed Practical Nurse (LPN) or a Registered Nurse (RN). ALFs permit medications to be provided by unlicensed personnel usually referred to as “caregivers.”

NHs are required by federal law to conduct in-depth assessments of residents upon admission and on a regular basis thereafter such as fall risk and must have a plan of care. ALFs tend to be by resident care agreements entered into with the resident.

NEVERTHELESS, THE TYPE OF NEGLECT OR ABUSE SEEN IN BOTH TYPES OF FACILITIES IS THE SAME UNFORTUNATELY

Nursing homes are inspected for quality every year by a regulatory department of the state government where the nursing home is located, which issues “deficiencies”, the list of problems by which poor quality care is identified. The vast majority of all nursing homes in the United States, 92.6%, receive deficiencies and 20.5% receive serious deficiencies. The four most common deficiencies are:

• infection control;
• accident prevention;
• food sanitation; and
• quality of care

The major root causes of the deficiencies are:

• Understaffing;
• mismanagement by corporate owners and operators; and
• misallocation of money.

The typical and foreseeable harms occurring from abuse and neglect arising from these deficiencies are serious and heart breaking. They include:

• burns on heaters and from hot water; falls and fractures;
• choking on food;
• sexual assaults and rape;
• asphyxiation by bed rails or strangulation in curtains;
• head trauma from being dropped during a transfer;
• fragile residents wandering from the facility, getting lost or locked outside, then experiencing hyperthermia or heatstroke;
  injury from insects such as fire ants or maggot infestation;
• health equipment malfunctions such as clogged tracheostomy tubes, broken bed alarms that are meant to prevent falls, and crusted over catheter tubes;
• and discreet injuries such as stroke, loss of an eye, amputation, fecal impaction, urinary tract infections, bed sores, untreated pneumonia, overmedication even to the point of overdose and death, under medication, malnutrition, dehydration, and gangrene.

The same problems are happening in ALF’s

Not all ALFs are inspected by state regulatory departments. Inspection depends on the state laws governing ALFs. One of the most common problem leading to neglect or abuse in an ALF is the facility accepted someone into its community who requires a higher level of care than the facility can provide. Another is the facility accepting someone into its community who was appropriate at the time of his or her admission, but whose condition deteriorates making the person no longer a good fit for assisted living, yet the facility keeps him or her in the community. These residents are accepted or kept so that the ALF can continue to charge the resident even though it does not, and cannot, provide the level of care the resident needs.

How do we stop neglect and abuse?

This abuse and neglect can only be stopped by holding corporate wrongdoers accountable with deterrence and punishment! Judges and juries must be educated on what these cases are really about: increasing the corporate bottom line at the expense of quality care.

Advocates are needed for those who do not have a voice. That is the role of an experienced nursing home trial lawyer.

Litigation is necessary to hold those who abuse or neglect accountable and responsible. Making the world a safer place by deterring unsafe conduct is a legitimate function of tort law, which is accomplished when we require wrongdoers to compensate victims for the harm done to them. In other words, when we require nursing homes and ALFs who harm residents to pay for that harm we discourage the harmful conduct.

Some states go further still and allow for punitive damages, which are damages above and beyond what is necessary to pay for the harm caused and are designed to punish a nursing home or ALF operator or owner for the misconduct that led abuse or neglect. Punitive damages are meant to “send a message” to the industry that neglect and abuse will not be tolerated and will be punished.

Misconceptions about Nursing Home and ALF abuse

Misconceptions abound from defense lawyers, insurance adjusters, mediators and judges about nursing home litigation. Thus, a plaintiff’s trial lawyer representing a victim of nursing home or ALF abuse and or neglect often must prove the case twice. First, the trial attorney has to educate judges, adjusters, mediators and opposing lawyers as to why nursing home cases are different from any other type of case, particularly the typical medical malpractice case. Second, the trial attorney has to prove the case to the jury. These are not easy tasks. In order to obtain maximum results, the misconceptions surrounding nursing home litigation must be removed.

MISCONCEPTION # 1: IT’S ALWAYS OK TO DECLINE IN HEALTH IF YOU’RE IN A NURSING HOME

Federal and state regulations require that a nursing home resident maintain a level of health or improve in health. While declines due to underlying health problems may occur, they cannot be the result of failing to deliver necessary care. Any decline in health without physician and family intervention is unacceptable.

MISCONCEPTION # 2: NURSING HOME CASES ARE MEDICAL MALPRACTICE CASES

Nursing home residents have rights and guarantees by state and federal statutes, enforced by state and federal regulations. Failure to comply with state and federal regulations provides the basis for nursing home cases. Medical malpractice cases arise from lack of compliance with an “adequate and appropriate” standard of care. Further, nursing home and ALF cases arise from failing to deliver basic custodial care like keeping residents clean and dry, fed, and safe from falls, not typically from failing to treat a discreet medical condition properly.

MISCONCEPTION # 3: INJURIES TO THE ELDERLY HAVE LITTLE OR NO VALUE

The trend across the country, thankfully, is one of increasing empathy for the elderly. This may be in part because of the aging of our population, as “baby boomers” start to retire and their health and ability to live independently changes. Living life with dignity has value as do dying on your own terms and enjoying the golden years in a pain free lifestyle. The last remaining years of life should not be years of physical and emotional suffering, abuse or neglect. Age is no longer a factor to a jury.

MISCONCEPTION # 4: IT HAPPENS

This misconception is associated with the thought that because accidents, falls, ulcers and elopements are to be expected and the norm. Accidents in nursing homes and ALFs are not typical accidents. One reason residents come to nursing homes and ALFs is because they are at risk of injury to others or to themselves. Nursing homes and ALFs carry a heightened duty to ensure safety and prevent accidents. Initial assessments of residents must be done and if done correctly, the care plan developed from it will identify the resident’s potential risks that can be guarded against.

If a proper care plan is not put in place the resident risks potential injury; for example a care plan that addresses a fall risk may include three components:

• Problem identification – risk for falls for example;
• Goal set – will remain fall free with no resulting injuries; and
• Approach / Plan – will perform spot checks every 20 minutes and put fall prevention measures in place.

The unfortunately reality is that in many cases the nursing home identifies a problem and develops a plan to address the problem, but it rarely follows through with the plan and as a result, the resident suffers injury. And the result of a “simple” slip and fall for an elderly person, can have catastrophic effects.

For example, an elderly person who breaks a hip from a fall often suffers a series of medical and emotional consequences from the lack of mobility that affect not only their immediate quality of life but even how long they might live if they recover.

MISCONCEPTION # 5: IT’S THE FAMILY’S FAULT

Families most often place their loved ones in nursing homes or ALF because they do not have any other choice. Sometimes nursing homes or ALFs are recommended by other health care providers due to a decline in the individual’s health. The family trusts the facility to do the right thing and provide adequate care, supervision and treatments while the family member is away, working or otherwise unavailable 24 hours a day.

Family who bring these type of lawsuits on behalf of their loved ones pursue these cases to prevent a continuation of poor care. It’s not all about the Benjamin’s – it’s about Quality of Life.

Abuse in Home health and Hospice Care

Moving beyond nursing home and ALF neglect, the newest trend of neglect and abuse, unfortunately, is home health care and hospice care.

Home health care is increasing because the aging Baby Boomers want to stay home rather than enter a long-term-care facility. Home health care like assisted living is not federally regulated. The industry can make up its own rules.

Common home health care issues are theft and caregivers coming into the house only to put the home resident to bed then watching TV all day. Family members return home to a home-care resident who is ready to be up all night because the nights and the days are reversed.

That’s a dignity issue. And, loss of dignity is a harm.

An estimated 1.6-1.7 million patients receive hospice-type services every year. The number of hospice facilities continues to increase every year, with over 6100 locations today nationwide. Out of those 6100 locations, 5% are nursing homes, 59.1% freestanding independent facilities, and 19.6% are part of a hospital system, leaving 16.3% to home health agencies. Four levels of care exist:

• Routine Hospice Care, the most common level in which the patient has elected to receive hospice care;
• Continuous Home Care, which is care provided between 8 and 24 hours a day to manage pain;
• General Inpatient Care. Pain control, or other acute symptom management that cannot be provided in any other setting;
• Inpatient Respite Care. Available to provide temporary relief to the patient’s primary caregiver.

Our society is aging. That aging population has care needs that must be attended to. Often by necessity, that can only be done in a long-term-care setting of some sort. But where corporate profit margins overshadow care needs, residents get hurt and often die. Our system holds those corporate wrongdoers accountable, and rightly so. Our loved ones deserve no less.

I need help, how do I get started?

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