Brien Roche
Nursing home lawyers have been busy over the last several years. The care and concern for our elders is going downhill.
Brien Roche as an experienced nursing home lawyer serves all of Northern Virginia, Maryland, and Washington DC including:
Call, or contact Brien Roche for a free consultation.
Victims of nursing home neglect and their families have a right to fair and just payment for their injuries. Nursing home residents are among the most helpless people within the healthcare system. Consequently they need someone to defend them.
Claims against nursing homes are for falls, bed sores, lack of hydration or other forms of neglect. Patients have a right to treatment with respect. They have a right to be represented aggressively. Therefore if you or a loved one have a claim for nursing home neglect, contact an experienced lawyer.
Brien Roche has a proven track record with over 40 years of trial experience in the Northern Virginia area. Contact Brien today if you are looking for aggressive, competent representation in the Fairfax, Virginia area, Washington DC or Maryland.
Bed sores, also called pressure sores, are a common problem in nursing homes. U.S. rules set standards as to how to prevent them and how to treat them.
Nursing home falls are all too common. They should not occur. The Omnibus Budget Reconciliation Act of 1987 (OBRA) sets the standard of care for nursing homes. A quick way to learn about this statute and its rules is through the Health Care Financing Administration’s state operation manual.
Another issue in nursing home cases is general staffing. The fewer the number of staff on duty the greater the profit. Therefore the staffing to patient ratio needs to be closely looked at.
If you suspect the quality of care at a nursing home is subpar search Medicare’s site. This site has info about all homes that are Medicare or Medicaid certified.
Any home which accepts Medicaid funds must also abide by the rules. These rules set forth standards for care. Many of these rules are published by the Health Care Financing Administration(HCFA). However they are overseen by the states.
There is an annual review of Medicaid certified homes. In addition homes must comply with U.S. and state standards. Medicare’s Nursing Home Compare program has info about nursing homes as to ownership. Also they have info as to whether the home is for profit and other valuable info.
Pressure sores must be prevented. They are deadly for the patient. Their presence is a form of nursing home abuse.
They arise in tissue that is near to some bony structure. That is the spine, the hip or the knee. These bony points and the bed or seat apply pressure to the tissue in between. Most of these sores are in the lower part of the body. That is the lower back and the hips.
Pressure sores are staged. Stage I is a red mark which heals quickly. Stage II is blisters like a rash. The third stage is a wound that has gone deeper to destroy tissue below the first level of the skin. Finally Stage IV is a wound all the way down to the bone.
U.S. rules deal with pressure sores but state that they are only for licensing and rate reimbursement purposes. They are not to a basis for a lawsuit. However under Virginia law they may be a basis for setting a standard of care. The question to any nursing home is whether good nursing home practice requires compliance with these rules. Of course the answer is yes.
What these rules say is that a patient who enters a nursing home without pressure sores should not develop such. There may be cases where they cannot be avoided. Patients with pressure sores must receive needed treatment to promote the healing and to prevent new sores. Some basic measures are the use of special mattresses, setting turning schedules of at least every two hours and use of medications when needed. If the care plan is lacking that may be the root cause of the subpar treatment. Call, or contact us for a free consult.
A nursing home must file a minimum data set (MDS) with Medicare and Medicaid for payment. This sets forth the status of the patient.
Also there is a 24-hour report. This describes the hand off of a patient from one shift to another. Many nursing homes do not keep this info for long. Also the activities of daily living (ADL) flow sheet has a wealth of info. In addition some nursing homes say this info does not have to be retained. These documents are the sources of proof of the subpar care.
The bottom line is that pressure sores should not exist.
A common defense is that these bed sores are terminal ulcers. They will argue they cannot be avoided. However under F-tag 314 a bed sore should not be described as unavoidable unless all reasonable efforts have been made to prevent and heal it.
The so-called watermelon book (a reference to its color) is formally known as the Long Term Care Survey. It is published by the American Health Care Association. It contains the U.S. rules from the Centers for Medicare and Medicaid Services (CMS) that guide nursing home staff. The rules within this book are called F-tags. Also they are published in the Federal Register. Furthermore these F-tags set forth basic standards as to nursing home care.
In the course of a nursing home case, you need to take the deposition of the nursing home’s medical director. Her job is defined in F-tag 501. The medical director will be your best witness. Furthermore she will confirm that the F-tags set the standard of care for nursing homes. These rules are at 42 C.F.R. §483.
The legal theories of fault against a nursing home range from negligence to breach of contract to res ipsa loquitur. Negligence in many cases begins with the home’s lack of staff. This impacts the first assessment of the patient. They must have a plan to prevent falls, pressure sores and dehydration. There must be safety devices such as bed alarms in place. These alarms tell the staff when a person gets out bed. In addition there must be a good toileting program in place.
Breach of contract occurs with the lack of safe and reasonable care as seen above.
Res ipsa loquitur arises where the home has exclusive care and control of the patient. This gives the plaintiff the benefit of fault being presumed.
In addition, you must look at any applicable adult protection statutes to support the claim.
Some basic things that the lawyer must obtain or retain are:
If you or a loved one have a claim for a nursing home fall contact us.
The nursing home industry is very smart. So smart that many outfits set up a complex network where the nursing home operation is done by one legal entity. The building and grounds are owned by another. Finally the staff is employed by a third legal entity. That creates a difficult network that you may have to pierce if there is not enough insurance. In addition to decide who controls the nursing home you should
What this means is you must:
Nursing home arbitration clauses are a hot topic. Many nursing home contracts require the patient to arbitrate any disputes. These include abuse issues or otherwise. This deprives the patient of his right to a jury trial. Call, or contact us for a free consult.
This waiver may be unconscionable. The patient may not be the one who is making the choice about admission. At admission the family and/or decision maker may be under the gun to make a prompt decision. The patient has to go somewhere. There may not have been a lot of planning in deciding where to go.
This waiver also means increased cost of having to pay one or more arbitrators to decide the case. In addition the patient has to pay for an attorney. Arbitration awards tend to be smaller than awards from a Judge or jury. In addition, these awards are private. There is no public record as to what has gone wrong at this nursing home. However a Court case is out in the open. If there is a settlement that may contain limits on what can be disclosed. However if there is no settlement then the court file is open to the public.
In looking at unconscionability there are several factors. Do the terms of the contract grossly favor one party over the other? Do they prevent one party from exercising basic rights? Is there a vast disparity in rights and power between the parties? Shortening of limitation periods is another factor. Also imposing travel on the patient is a factor. Likewise putting increased burdens on the plaintiff to prove her case must be factored in. If the nursing home agreement has a right to opt-out of the arbitration after signing this gives you a chance to “cool off”. This too is a factor.
One plus to arbitration as opposed to a lawsuit is that the former is quicker.
On September 28, 2016 the Centers for Medicare and Medicaid Services (CMS) issued a final rule on these clauses. It bars nursing homes from using pre-dispute forced arbitration agreements in admission contracts dated after November 28, 2016. This rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid. This includes most nursing homes in the U.S.
Other factors to look at in deciding if such an agreement can be enforced:
A New York Times article of March 12, 2011 reported on abuse in state run nursing homes. The investigation was for over a year. It reported big problems in more than 2,000 such homes that housed disabled people.
New York State law requires that incidents of criminal behavior be reported to the police. In contrast the article disclosed that very few of these alleged criminal incidents were reported.
It was the practice of the agency to handle most of these abuse cases in house. However the agency was not able to investigate these matters due to the lack of trained people. In many cases the supervisors of the accused employees were the investigators. Call, or contact us for a free consult.
The article reports that in 25% of the abuse cases the punishment was a transfer to other homes. State employees have a worker’s union which defends them.
Many of these homes are in depressed areas. They pay salaries that are above local standards. The state has no education requirements for working in these homes. Some times the employees are doing complex tasks such as giving drugs with little or no training.
In one case a state employee was convicted of beating a 99 year old man. He pled guilty to the misdemeanor. He was barred from taking part in U.S. financed health care programs. However he kept his state job. In addition he continued working with disabled persons.
Nursing home abuse damages are difficult to prove. You must look at several factors:
If you have a question about a nursing home case, contact us.See also the pages on Wikipedia.
“I have been a client of Brien Roche for over 25 years and continue to receive exception service. Over the years he has represented in numerous situations including very large commercial transactions, business issues and others. His advice is invaluable as he listens well and is very measured in his responses. He will give you options and the pros and cons of each for you to decide what is your best course of action. I strongly encourage anyone to meet with Brien before they decide who to hire to represent them.” - Clifton Killmon
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