Any nursing home lawyer with experience has been kept busy over the last few years due to the burgeoning number of problems associated with the quality of care of our aging population.
Brien Roche is an experienced nursing home lawyer serving all of Northern Virginia, Maryland, and Washington DC including:
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Victims of nursing home negligence and their families are entitled to fair and just compensation for injuries or death caused by inappropriate care. Nursing home residents are among the most helpless and the most dependent of people within the healthcare system. They need someone to defend them.
Claims against nursing homes frequently arise from falls, bed sores, dehydration or other forms of neglect. Residents are entitled to treatment with dignity and to be represented aggressively. If you or a loved one have been the victim of 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 the most common problem in nursing homes. Federal regulations set standards as to how these are to be prevented and if present how they are to be dealt with so they do not get worse.
Nursing home falls are frequently a violation of the mandate to provide reasonable care and are evidence of nursing home abuse. The Omnibus Budget Reconciliation Act of 1987 (OBRA) sets out the minimal standard of care for nursing homes. A quick way to learn about this statute and its regulations is to obtain a copy of the Health Care Financing Administration’s state operation manual.
The theories of liability that may be asserted may range from negligence to breach of contract to res ipsa loquitur. The negligence may be based on the home’s failure to properly staff the facility, failure to properly assess the resident, failure to implement a care plan to prevent falls, failure to use safety devices such as bed alarms to notify the staff when a person gets out bed, failure to implement and follow an appropriate toileting program.
The breach of contract theory may be based upon the nursing home’s agreement to provide safe and reasonable care.
A res ipsa loquitur theory may be based on the fact that the home had exclusive care and control of the patient.
In addition, it is important to look at any applicable adult protection statutes that may buttress liability.
Some basic things that need to be obtained in the course of any such claim are:
It is probably also important to retain the services of a nursing home expert who can determine whether or not the care plan was adequate to protect this patient and whether or not the care plan was complied with.
If you or a loved one have been injured as a result of a nursing home fall, contact us.
If you think you have a basis for a claim against a nursing home or a long term care facility, you may want to search Medicare’s site dealing with nursing home care. This site provides information about all facilities that are Medicare or Medicaid certified.
Any facility which accepts Medicaid funds must also abide by the pertinent regulations establishing standards for care in these facilities. Many of these regulations are put out by the Health Care Financing Administration (HCFA) and are administered through the states.
Medicaid-certified facilities are evaluated every year and are required to meet federal and state certification, licensing and performance standards. Medicare’s Nursing Home Compare program provides information about nursing homes as to ownership, whether they are for profit and other valuable information.
The so-called watermelon book (a reference to its color) is formally known as the Long Term Care Survey and is published by the American Health Care Association. It contains the federal regulations from the Centers for Medicare and Medicaid Services (CMS) that guide nursing home staff. The comprehensive regulations contained within this book are also referred to as F-tags. They are published also in the Federal Register. These F-tags set forth basic standards as to nursing home care. They are critical in terms of evaluating cases from a litigation point of view.
In terms of litigating nursing home cases, it is important to take the deposition of the nursing home’s medical director whose responsibility is set forth in F-tag 501. The medical director of the nursing home is probably going to be your best witness in terms of confirming that the F-tags indeed establish the standard of care for nursing homes. These regulations can be found at 42 C.F.R. §483.
In the course of nursing home litigation a number of different issues can arise. Many nursing home cases involve pressure sores or bed sores. A typical defense asserted by the nursing home is that these bed sores are in fact terminal ulcers that are unavoidable. Under F-tag 314 you have a strong argument to make that a bed sore cannot be characterized as unavoidable unless all appropriate efforts have been made to prevent it and to heal it.
Another frequent issue in nursing home cases is general staffing. The fewer the number of staff people that are on duty at any given time the greater the profit for the nursing home. The staffing to patient ratio needs to be closely looked at.
In addition, within many nursing home contracts there are mandatory arbitration clauses. These deprive the patient of the right to a jury trial. It is important to look at the contract and if in fact there is a mandatory arbitration clause it needs to be evaluated as to whether or not it is enforceable.
The nursing home industry is very sophisticated. What many nursing home corporations do is to establish an intricate network wherein the nursing home operation is conducted by one legal entity, the building and grounds are owned by another legal entity and the staff may even be provided by yet a third legal entity. That creates a difficult network of corporations that potentially may need to be pierced if there is inadequate insurance coverage. Some factors to consider in determining who really controls the nursing home are:
Nursing home records are of course critical in any nursing home case. In most nursing home cases the most important expert to be retained is a nurse with experience in long-term care. The nurse is going to want all of the records and those records should probably be organized in logical fashion consistent with the following:
All nursing homes are required under federal regulation to provide requested copies of records to the resident or family within 24 hours.
Nursing home arbitration requirements have been the subject of some litigation over the last many years. Many nursing home contracts contain a mandatory nursing home arbitration clause requiring that any disputes between the patient and the nursing home,whether it be one of nursing home abuse or otherwise, be submitted to either a single arbitrator or a board of arbitrators for resolution. That deprives the patient of their right to a jury trial.
Any intelligent adult can voluntarily waive their right to a jury trial. The waiver however that exists in nursing home arbitration contracts may, in some instances, be unconscionable because the patient frequently is not the one who is making the decision about admission and the circumstances of admission are normally such that the family and/or decision maker is under the gun to make a prompt decision because the person has to be placed in some facility.
The down side of arbitration of claims against a nursing home is the lack of the right to a jury trial, the increased cost of having to pay one or more arbitrators to decide the case in addition to having to pay your own attorney and the fact that arbitration awards that are decided by arbitrators tend to be smaller than in cases that are submitted to a Judge or jury for a decision. In addition, arbitration awards are typically confidential and therefore there is no public record as to what has gone wrong at this nursing home. A Court decision typically is not going to be governed by any such confidentiality unless there is a settlement that is reached that provides for such.
The one advantage to arbitration as opposed to litigating a nursing home case in Civil Court is that arbitration can be more expeditious, i.e. you get a quicker decision.
On September 28, 2016 the Centers for Medicare and Medicaid Services (CMS) issued a final rule prohibiting nursing homes from using pre-dispute forced arbitration agreements in admission contracts that were dated after November 28, 2016. This rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid which includes the vast majority of facilities in the United States.
In those instances where you or someone on your behalf has signed a nursing home arbitration contract that contains an arbitration clause and you later on want to disown it you need to look at whether or not there is an opt-out provision within the nursing home agreement. That is, many nursing home agreements have a right to opt-out of the nursing home arbitration agreement within 30 days after you have signed it. That opt-out provision is intended to give you a chance to “cool off” and to more intelligently review the contract that has been entered into. In addition, it is possible to claim that the arbitration requirement is simply unconscionable, i.e. that it simply was too much to expect that a person making a decision about nursing home care could intelligently review and evaluate multiple pages of a nursing home contract that contains an arbitration clause probably hidden in the small print. That argument in Virginia is probably a tough argument to make but it certainly is available.
There are a number of factors to be considered in determining whether or not an arbitration agreement within a nursing home contract is enforceable:
Pressure sores are preventable.They are a bugaboo for any nursing home and can be deadly for the patient.They are sometimes called pressure sores or pressure ulcers or just bed sores and many people see them as a form of nursing home abuse.
Typically, pressure sores arise in tissue that is in proximity to some bony structure, i.e. the spine, the hip or the knee. It is at these points that pressure is applied to the nearby tissue. Most of these pressure sores occur in the lower part of the body, in particular the lower back and the hips.
Pressure sores can be staged into four different categories. Stage I simply involves a red mark which usually can be healed fairly quickly. Stage II involves blistering resembling a rash. Stage III means that the wound has gone deeper and has begun to actually destroy tissue below the first level of the skin. Stage IV involves a wound that typically goes all the way down to the bone.
There are federal regulations that have been put out as part of the Omnibus Budget Reconciliation Act of 1987 that set forth some arguable standards in regards to pressure sores. The regulations actually state that they are only for licensing and rate reimbursement purposes and are not to be the basis for a lawsuit. Under Virginia law, however, these regulations probably could be utilized as a basis for establishing a standard of care. The question to be posed to any nursing home official is whether or not good nursing home practice would involve compliance with these regulations. Of course the answer is yes.
What these federal regulations say in essence is that a resident who enters a nursing home without pressure sores should not be allowed to develop pressure sores unless the individual’s clinical condition demonstrates that they are unavoidable and further a resident having pressure sores must receive necessary treatment and services to promote the healing of the sores and prevention of new sores. Some basic preventive measures are the use of special mattresses, maintaining strict turning and repositioning schedules of at least every two hours and use of medications when necessary. If there is evidence of the care plan being deficient, then that would lead to the conclusion that the sores are not unavoidable.
The staff at a nursing home is required to complete and file what is called a minimum data set (MDS) and to file this computer generated item with Medicare and Medicaid for payment. This document sets forth the various assessments and observations dealing with the patient.
Other documents of interest in any nursing home case are the 24-hour report, which is the report that involves the turnover of a patient from one shift to another. Many nursing homes maintain that this information does not have to be maintained for long and therefore it is discarded. Also, the activities of daily living (ADL) flow sheet may contain a wealth of information. Again, some nursing homes maintain that this information does not have to be retained.
The bottom line is that pressure sores are highly preventable and with proper care can indeed be prevented.
Nursing home abuse in state-run nursing homes in New York State was the subject of a recent expose in New York Times article published on March 12, 2011. The investigation took place over a year and found significant problems in more than 2,000 state-run homes that house disabled people.
New York State law requires that incidents that involve criminal behavior are to be reported to law enforcement authorities. The investigation, however, disclosed that very few of these purported criminal incidents were in fact reported.
Indeed, it was the practice of the state agency to handle most of these abuse allegations internally even though the agency lacked the apparent capacity to properly investigate these matters due to the lack of trained investigators. In many instances the supervisors of the accused employees were the primary investigators.
The article reports that in 25% of the cases involving abuse the state employees were simply transferred to other homes. State employees are protected by a worker’s union which aggressively defends the employees in all instances.
Many of these homes are in financially depressed areas and pay salaries that are generous by local standards. The state has no educational requirements for employment within these homes and frequently the employees are performing sophisticated tasks such as administering drugs with little or no training or experience.
In one instance a state employee at a group home in Upstate New York was convicted of beating a 99 year old man. He pled guilty to the misdemeanor and was barred from participating in federally financed health care programs but in spite of that he kept his state job working with disabled persons.
Nursing home abuse damages can be difficult to prove. In assessing the ability to prove damages in a nursing home abuse case the nursing home lawyer must consider several factors:
Proving the actual damages is going to be very case specific: