Nursing Home Negligence Attorney Daniel S. Chamberlain, Indianapolis A. Overview By the year 2020, 16% of the population in the United States will be over the age of sixty-five years old. The number of Americans residing in nursing homes is expected to increase from approximately two million to 4.6 million in the year 2040. Indiana has 566 licensed nursing home facilities with a total of 57,520 beds. Currently licensed medicaid/medicare nursing homes in Indiana are operating at an occupancy rate of 73.57%. Almost 40% of the occupants of Indiana nursing homes are over the age of eight-five. Indiana nursing homes are overseen by the Indiana State Department of Health (hereinafter, Department).. Seven percent of Indiana licensed nursing homes were cited for violations amounting to s tu o n ch n Immediate Jeopardy. Immediate jeopardy i a si a ti n i w h i th e n u rsi g h o m e ’ s noncompliance with one or more requirements has caused, or is likely to cause, serious injury, impairment, or death to a resident. In these situations, the Division initiates an enforcement action and requires that the home take immediate steps to remove the jeopardy. If the nursing home does not remedy the jeopardy within the time frame specified by the Department, it is terminated from the Medicare and/or Medicaid programs within twenty-three days of the end date of the survey/inspection. The Department reports that 11 percent of the nursing homes in Indiana had violations that amounted to a "substandard quality of care." Substandard quality of care is a regulatory term which means that one or more requirements under the federal regulations 42 CFR 483.13 (resident behavior and facility practices), 42 CFR 483.15 (quality of life), or 42 CFR 483.25 (quality of care) were not met, to a degree constituting immediate jeopardy to resident health or safety, and a scope of pattern or widespread actual harm, or a widespread potential for more than minimal harm. A finding of substandard quality of care indicates that the nursing home was found to have had a significant deficiency (or deficiencies), which the home must address and correct quickly to protect the health and safety of residents. The Department specifies a maximum time frame for correction of the deficiencies. Only 12 percent of the 566 facilities in Indiana were reported to have zero deficiencies on their most recent surveys/inspections. Indiana scores nursing homes by the number of requirements in each category (administration, care and services, resident rights, dietary and environment) that were not in compliance as measured by scope and severity of the problem. Therefore, the higher the score, the more violations/deficiencies and the higher the degree of severity of the deficiencies at the home. The average facility had a score of 144. Out of the 566 nursing homes in Indiana, 312 had a score above the statewide average score. d e s d o ca A su rve y o f 5 7 7 n u rse s’ a i e s re ve a l d th a t th e re i w i e sp re a d p sych o l g i l a n d physical abuse of patients. The most common form of abuse is psychological. Four out of five (520) aides had witnessed yelling at patients in anger during the past year. Half of the aides witnessed swearing and similar insults at the patients. The second most common form of abuse is physical. One-third of the aides witnessed physical abuse of an elderly patient in the preceding year. This abuse came in the form of unnecessary restraint, pushing, shoving or pinching a patient. There are numerous federal regulations governing the operation of a nursing home and the type and quality of care a patient is to receive. The first regulation came under the social Security Act. This Act provides that: "A nursing facility must care for its residents in such an environment as will promote maintenance or enhancement of the quality of life of each resident." The Act provided enumerated rights to patients of nursing homes which are listed below: The Social Security Act 42 U.S.C. §1396(r) Patients Rights 1. Personal choice of attending physician 2. Receive notification in advance of, and participate in, the decision to change the care of the resident 3. To be free from physical and mental abuse, involuntary seclusion and unnecessary physical or chemical restraints 4. To maintain privacy with regards to accommodations, medication treatment and communication with family 5. Voice grievances 6. To participate in resident and family groups and other activities 7. To examine surveys of the home 8. To refuse certain transfers 9. To be informed of their rights In addition to the rights enumerated under the Social Security Act, Congress established rights to Medicare/Medicaid nursing home residents in Title 42 of the Code of Federal Regulations §483.10, "A nursing home resident has a right to a dignified existence, self determination, and communication with and access to persons and services inside and outside the facility." s i ch The Older America n ’ A ct o f 1 9 6 5 e sta b lsh e d th e sta te o m b u d sm a n p ro g ra m w h i acts as a watchdog overseeing the inspections carried out at the state level. The function of the state ombudsman is to investigate complaints, monitor care, inform residents of their legal rights and assemble and disseminate information on long term care issues. Most states operate under the direct authority of a state government or department (some have been privatized). In Indiana the State Ombudsman is under the control of the Division of Aging and Rehabilitative Services. In 1987, Congress passed the Omnibus Reconciliation Act (OBRA). This Act is commonly referred as the Nursing Home Reform Amendments. The purpose of the Amendments was to improve the care of elderly persons in nursing homes. OBRA n nn re d a fi i cre a se d th e tra i i g re q u i m e n ts fo r n u rse s’ a i e s a n d cl ri e d a n d stre n g th e n e d th e Resident Assessment Instruments (RAI) used to gauge residents needs and abilities ch n s g e s a w h i , i tu rn , i u se d to d e si n a p a ti n t’ ca re p l n . The Minimum Data Set (MDS) is the primary screening and assessment tool for nn e s e n n d e te rm i i g a p a ti n t’ stre n g th s, n e e d s, a n d p re fe re n ce s, su ch a s, sl e p i g a n d e a ti g patterns, bladder incontinence, history of medication, status of hearing and vision, and daily living functions (locomotion and dressing). Resident Assessment Protocol (RAP) is a follow up assessment performed when any of eighteen problem areas are triggered by the response to MDS, i.e., delirium, cognitive loss/dementia, and difficulties in performing activities of daily living (ADL). The Care Plan found at 43 U.S.C. §1395i -3(d)(1)(A), provides the highest practicable level of physical, mental and psychosocial well-being of each resident. These plans must be specific, and they have to meet the needs and abilities of each resident. Specific persons must be assigned specific responsibilities in order to meet the statutory goal. Coordination between nurses, doctors, pharmacologists, physical therapists is an important function of the care plan. In Indiana, Title 460 of the Indiana Administrative Code, Division of Disability, Aging, and Rehabilitative Services sets forth a purpose for pre-screening unlike that of the federal OBRA. The stated purpose for a health facility pre-admission screening program in Indiana is to determine whether there are community services available for individuals who need assistance with the tasks of daily living that would be more appropriate than care in a health facility and, if so, to deny permission to enter a health facility unless the individual is willing to forego eligibility for certain Medicaid reimbursement for a period of time beginning from the date of admission as specified in IC 12-10-12-33 and IC 12-10- 12-34. a s i n l In d i n a ’ e n a b ln g sta tu te cre a ti g th e fe d e ra ly mandated ombudsman program expands the federal purpose to include identifying concerns regarding the health, safety and welfare, or rights of residents. Rule 7 of Title 460, Division of Disability, Aging, and Rehabilitative Services establishes the Indiana Long Term Care Ombudsman Program. The purpose of Rule 7 is to implement the long term care ombudsman program which includes identifying, receiving, investigating, resolving, or attempting to resolve complaints and concerns regarding the health, safety, welfare, or rights of residents. Furthermore, the Ombudsman has statutory immunity from nursing home litigation. In addition to the Federal regulations, Indiana has statutes regulating Comprehensive Long Term Care Facilities, Residential Long Term Care Facilities, and Intermediate facilities for the mentally retarded. Long term care facility, is defined in the Indiana code as either a facility licensed or subject to license per the Indiana Code or an adult care home. Comprehensive Care Facility means a health facility that provides nursing care, room, food, laundry, administration of medications, special diets, and treatments, and that may provide rehabilitative and restorative therapies under the order of an attending physician. (Indiana State Department of Health; 410 IAC 16.2-1-8, eff Apr 1, 1997; readopted filed Jul 11, 2001, 2:23 p.m 24 IR 4234). Residential Care Facility means a facility that provides room, food, laundry, and occasional assistance in daily living for residents who need less service than the degree of service provided by a comprehensive care facility. There is an overall general supervision of health care, medications, and diets as defined in the written policies of the facility (Indiana State Department of Health; 410 IAC 16.2-1-36; filed May 2, 1984, 2:50 pm: 7 IR 1455; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234). There are no federal regulations pertaining to residential long term facilities. Intermediate Care Facility for the mentally retarded (or persons with related conditions) means a health facility that provides active treatment for each developmentally disabled resident. In addition, the facility provides nursing care, room, food, laundry, administration of medications, modified diets, and treatments. An Intermediate Care Facility is only for developmentally disabled residents, and the facility shall be designed to enhance the development of these individuals, to maximize achievement through an interdisciplinary approach based on development principles, and to create the least restrictive environment (Indiana State Department of Health; 410 IAC 16.2-1-19; filed May 2, 1984, 2:50 p.m.: 7 IR 1453; filed Jan 10, 1997, 4:00 p.m.: 20 IR 1521, eff Apr 1, 1997; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234). Nursing home case law in Indiana is scarce at best. This scarcity can likely be explained by the propensity toward settlement in actions involving nursing homes. However, there are a few key cases in Indiana. In 1999, the Indiana appellate court in Foster v. Evergreen, allowed for actions in tort and contract theories to be filed against a nursing home. Donald Foster was a resident at Tree Manor nursing home that was operated by Evergreen Healthcare, Inc. Donald was awakened early in the morning by an employee of Tree Manor for a whirlpool bath. When the employee lowered Donald into the tub, the d m y s d s fe w a te r b u rn e d D o n a l o ve r a p p ro xi a te l 5 0 p e rce n t o f h i b o d y. D o n a l ’ w i , o n f s am n rl , b e h a l o f h e r h u sb a n d ’ e sta te , so u g h t cl i s a g a i st th e m a n u fa ctu re r o f th e w h i p o o l s a o ve u and the manufa ctu re r o f th e tu b ’ te m p e ra tu re re g u l ti n va l a n d th e p l m b e r th a t installed the whirlpool. In addition, claims against the nursing home included negligence, gross negligence, breach of contract and breach of fiduciary duty and duty of good faith and fair dealing. The defendants of the nursing home moved for partial summary judgment stating that a breach of a duty of care was negligence and that the estate could not sue both in contract and in tort for the same claim. However, the court disagreed and denied defendants request for partial summary judgment. (716 N.E.2d 19)(Ind. App. 4th district 1999). There is no case law in Indiana establishing a negligence per se cause of action. However, Indiana has adopted regulations defining neglect and abuse. Indiana regulations require nursing homes to develop and implement written polices and procedures that prohibit mistreatment, neglect, and abuse of residents. In addition, the residents have a right to be free from neglect and abuse. Indiana defines by regulation under Title 410 of the Indiana Administrative Code, Article 16.2 Health Facilities; Licensing and Operational Standards neglect as: (1) an act or omission which places a resident in a situation that may endanger the resident's life or health; (2) abandoning or cruelly confining the resident; (3) depriving the resident of necessary support, including food, clothing, shelter, and medical care; or (4) depriving the resident of education as required by statute. (Indiana State Department of Health; 410 IAC 16.2-1-25; 24 IR 4234). Abuse is defined under Title 410 of the Indiana Administrative Code, Article 16.2 Health Facilities; Licensing and Operational Standards as: "[A]ny physical or mental injury or sexual assault inflicted on a resident in the facility, other than by accidental means. (Indiana State Department of Health; 410 IAC 16.2-1-1; Jul 11, 2001, 24 IR 4234). Indiana has recognized a cause of action in deficiencies of care (negligence). In Connerwood Healthcare, Inc. v. Est. of Herron, a class action suit was brought against the nursing home for deficiencies of care, negligence and wrongful death stemming from a Salmonella outbreak.(683 N.E.2D 1322) (Ind. App. 1997). Stropes v. Heritage House Childrens Center of Shelbyville, is a very important case in nursing home litigation in Indiana and it is frequently cited in other jurisdictions. A s d d ta n u rse ’ a i e p e rfo rm e d o ra l a n d a n a l se x o n S tro p e s, a re si e n t o f th e H e ri g e H o u se . The Stropes court not only applied the theory of respondeat superior to hold Heritage liable, but went farther to hold that the common carrier exception of respondeat superior applies to nursing homes. The court stated that Indiana had long recognized the "extraordinary standard" of care imposed by the common carrier exception. The court historically defined the common carrier exception as: [L]iability that is predicated on the passenger's surrender and the carrier's assumption of the responsibility for the passenger's safety, the ability to control his environment, and his personal autonomy in terms of protecting himself from harm; therefore, the employer can be held responsible for any violation by its employee of the carrier's non-delegable duty to protect the passenger, regardless of whether the act is within the scope of employment. (547 N.E.2d 244)(Ind. 1989). Respondeat superior holds the employer liable for only those acts of employees that are committed within the scope of their employment. The common carrier exception holds the employer liable regardless of whether the employee was acting within the scope of their employment. The court held that the common carrier exception was necessary due to the degree of a d s a s n re si e n t’ l ck o f a u to n o m y a n d h i d e p e n d e n ce o n a n u rsi g h o m e fo r ca re a n d th e s d degree of h o m e ’ co n tro l o ve r th e re si e n t. Id . a t 2 5 4 . Other possible claims in nursing home litigation include negligence (failure to supervise, failure to treat), res ipsa loquitur and medical malpractice, as well as intentional infliction of emotional distress. Discovery in nursing home litigation involves experts, documents and public records. Nursing homes are heavily regulated and as a result of these regulations, documents are relatively accessible to the public. These documents are a result of the accounting requirements, inspection reports, and complaint procedures implemented by the federal and state governments. Federal and state governments have a website on the internet that posts "Report Cards" for all licensed nursing homes that are updated bi-monthly. The following is a list of information that should be considered during the discovery phase of litigation: 1. Industry Standards of Practice 2. Facility Policy and Procedure 3. Voluntary Accreditation Standards (JCAHO Accreditation) 4. Standards Promulgated by Professional organizations such as the Indiana Health Care Association 5. Hospital Discharge Summary 6. Nursing home admission notes and physical examination forms 7. Physician Orders and Progress Notes 8. Daily Nursing Notes 9. Nutritional Review meal forms, and dietician/nutritional consultant forms 10. Medication Records e s 11. Subspecialty Records, i.e. speech therapist, occupational therapist- se e p a ti n t’ Care Plan d s g 12. R e si e n t’ W e i h t R e co rd 13. Dental/oral Health Records Even though most documents in discovery are public record and easily obtainable, the task of admitting these documents in a proceeding may be difficult. Most evidence is in n o a n ff’ i th e fo rm o f a su rve y o r i sp e cti n re p o rt. P l i ti s co u n se l m a y try to e sta b lsh a pattern of regulatory or negligent conduct. Defense counsel should be aware that these surveys may contain statements from nursing home staff, administrators, residents, or family members, and the findings contained in the surveys may not be based upon the observations of the inspector or agency. These reports may be based in part on hearsay comments. Furthermore, the report cards may contain legal conclusions of the surveyor/inspector for the purposes of enforcement actions within the agency. These documents may not fall within the public records exception the state or federal hearsay rules. Moreover, if the report cards contain information regarding the specific complaint or incident involved in the litigation, they may be wholly or partially inadmissible because it constitutes legal opinions about the "ultimate issue" in the litigation, and as such, should be excluded as impermissible conclusory evidence. Expert forensic psychologists can be used to determine the level of pain and suffering experienced by the plaintiff. This type of expert may be needed because of the possible inability of the plaintiff to communicate. It is often difficult to distinguish a reaction from a traumatic event and symptoms of Alzheimer's Disease and/or other dementia diseases. The forensic psychologist can conduct the necessary psychological and neuropsychological tests and interviews that could decipher the reactions of abuse or neglect from symptoms of disease. Damages in nursing home litigation include compensatory and punitive. However, Indiana courts have rejected claims for punitive damages in wrongful death cases. Nursing home litigation has a history of high jury awards. In the U.S. District Court for the Northern District of Texas a jury awarded $312.7 million against Horizon Healthcare in a bedsore and malnourishment action (Cecil Fuqua, as executor of the estate of Wyvonne Fuqua, deceased, v. Horizon/CMS Healthcare Corp., f/k/a Horizon Healthcare Corp., No. 4:98-CV-1087-Y, N.D. Texas, Fort Worth Div.; See February 2001, Page 4). A Texas state court jury awarded the family of a deceased nursing home resident $21 million in a wrongful death action against Copperas Cove's Hill Country Rehabilitation and Nursing Center. (Phillip Lavalis, Individually and as Representative of the Estate of Rose Bonton, et al. v. Copperas Cove LLC, d/b/a Hill Country Rehabilitation and Nursing Center, et al., No. 183,293-B, Texas Dist., 146th Jud. Dist., Bell Co.). An Arkansas jury awarded the family of a former Diversicare nursing home resident $78 million for the wrongful death of Greta Sauer allegedly from dehydration and malnutrition (The Estate of Margaritha Sauer v. Advocat Inc., et al., No. CIV-2000-5, Ark. Cir., Polk Co.). However, Arkansas and Texas legislatures are debating on caps for compensatory and punitive damages in nursing home liability actions. As the baby boom generation gets older, there will be an increase in the number of Americans and residents of Indiana residing in nursing homes. If the quality of care in the nursing homes in Indiana continues to be substandard, there will be an inevitable increase in personal injury or wrongful death actions. The Indiana Supreme Court has paved the way for plaintiffs to hold nursing homes accountable for employees conduct irrespective of whether the conduct was within the scope of their employment. Given these considerations, and factoring in the history of high jury awards, nursing home actions may continue to be settled before reaching the courtroom. However, the cap- setting debates in Arkansas and Texas may set a trend amongst legislatures in other states. B. Non-Litigation Remedies Before suit is filed, an important consideration will include administrative remedies that may provide an efficient and prompt remedy for immediate care concerns. The following is a flow chart of non-litigation remedies that may be available: 1. Internal Nursing Home Procedures a.. Facility Grievance Procedures b. Identify areas of concern and request a special care plan conference. c. If the facility sponsors a Family Support Group, address the areas of deficiency at the meeting to determine if other families loved ones share the same concerns. 2. External Resources a. Indiana Long Term Care Ombudsman - The ombudsmen serve as advocates for nursing home residents. An ombudsman is assigned to each nursing home to address concerns regarding the health, safety, welfare and rights of residents. Ombudsman services are free and confidential. To determine the ombudsman assigned to a particular nursing facility, one may contact the Bureau of Aging and In-Home Services, 402 West Washington Street, MS21, P.O. Box 7083, Indianapolis, Indiana, 46207, 317- 232-7134. b. Indiana State Department of Health - The Department investigates all complaints about care, treatment, rights, staffing, food and other conditions for which the nursing facility is required to provide. The Department provides on site inspections, which are posted in advance in the facility. A complaint concerning facility operations and resident care, may be filed with the Department at 2 North Meridian Street, Section 4-B, Indianapolis, Indiana 46204, 800-246-8909 or on-line at http://www.state.in.isdh/regsvcs/ltc/longterm.htm. c. Adult Protective Services - This group is authorized to investigate reports of abuse, neglect and exploitation for persons over the age of 18. They may be contacted at Bureau of Aging and In-Home Services, 402 West Washington Street, MS21/ Room 7083, P.O. Box 7083, 317-232-0135. d. Medicaid Fraud Control Unit - The unit is charged with investigating abuse and e d l d n e g l ct o f re si e n ts a s w e l a s th e ft o f re si e n ts’ p e rso n a l fu n d s. T h e y m a y b e re a ch e d at Indiana Government Center South, 402 West Washington Street, Room C541, Indianapolis, Indiana 46204, 317-232-6520. e. Protection and Advocacy Services - This agency addresses concerns about resident care, treatment and rights of the developmentally disabled and/or mentally ill. Their contact information is: 4701 N. Keystone Avenue, Suite 222, Indianapolis, Indiana 46205, 317-722-5555. f. State Licensing Boards - Health professionals providing care and treatment of nursing facility residents, must be licenses in the State of Indiana. The Office of the Attorney General is charged with the investigation and prosecution (if warranted) of complaints against health care professionals. The Consumer Protection Division provides a complaint resolution procedure at 402 West Washington Street, Indiana Government Center South, Fifth Floor, Indianapolis, Indiana 46204, 317-232-6330. C. Common Areas of Neglect Most claims involve and error or omission on the part of the nursing facility, giving rise to a resident complaint. The majority of claims involve: 1. Decubitis Ulcers a/k/a Pressure Sores The terms pressure sore, pressure ulcer, bed sore, and decubitis ulcer are often used interchangeably. The primary cause of such a condition is pressure on the affected area. 70% of pressure ulcers occur in the adults aged 70 years and above. The vast majority of pressure ulcers are located in the lower part of the body, with approximately two-thirds in the pelvic are and approximately one forth in the lower extremity (ankle, heel and knee). The management of pressure ulcers produces a significant drain on U.S. health care resources, estimated in excess of $10 billion dollars annually. The average length of inpatient treatment is three months resulting in an average cost per admission of $30,000.00 to $78,000.00. In 1959, it was established that a pressure of 60 mmHg applied continuously for a one hour period produced irreversible microscopic changes in canine soft tissue. This is also referred to as the pressure time theory of pressure ulcer formation. In essence, the greater the local pressure that exceeds the capillary pressure, thus causing necrosis. The three mechanical forces that act on soft tissue are pressure (perpendicular load), shear (mechanical stress to the skin) and friction (two surfaces moving across another). Secondary factors leading to skin ulceration include malnutrition, skin maceration (perspiration, wound drainage, fecal and urinary incontinence) and existing skin quality. Of all factors that contribute to skin breakdown, malnutrition is secondary only to pressure in both the cause and nonhealing of pressure ulcers. Nutritional analyses reveal that patients with pressure ulcers are consistently malnourished. Most pressure ulcers follow a four stage progression. Stage I - Hyperemia - Redness of the skin can be observed within 30 minutes of continuous pressure and will disappear within one hour if pressure is relieved. Stage II - Ischemia - Develops if pressure is continuous for two to six hours. Redness of the skin takes at least 36 hours to disappear if pressure is relieved. Stage III - Necrosis - Pressure not relieved within 6 hours may produce necrosis, manifested as a blueness of the skin or a hard lump similar to a boil. The necrosis may not disappear after pressure is relieved. Stage IV - Ulceration - Within two weeks a necrotic area may become ulcerated and infected, bony prominences may be involved with infection. The severity of pressure ulcers, may be graded as follows: Grade I - Erytherna of intact skin. Grade II - Partial thickness loss involving epidermis and/or dermis. Grade III - Full-thickness loss involving damage or necrosis of subcutaneous tissues. Grade IV - Full-thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures. All pressure ulcers are potentially preventable, with proper attention, most ulcers can be prevented and those that do occur can be detected in their early stages and treated appropriately before surgical intervention is required. Techniques for prevention focus on health care worker awareness of patients at risk, pressure dispersion and basic skin care. Several standardized risk assessment systems have been developed, the most popular of which are the Braden and Norton scales. These scales assess various risk factors including general physical condition, mental state, activity, mobility, incontinence, an nutritional status. Although the clinical usefulness of the standards is of questionable usefulness, the awareness of potential risks to patients is important to reduce the incidence of pressure ulcers. Pressure sores are identified by way of objective examination, x-ray, white blood count (above 15,000 per microliter) and elevated erythrocyte sedimentation rate. Grade I and II pressure ulcers can usually be healed without the need for surgical intervention. Pressure relief is foremost in treatment, followed by debridement of any necrotic tissue. Grade III and IV pressure ulcers offer the patient the greatest chance of obtaining a permanently closed wound by way of operative intervention. Surgically closed wounds had a recurrence rate of 3 to 11 percent, while conservatively treated wounds had a recurrence rate of 32 to 77 percent. 2. Incontinence Incontinence is defined as an involuntary voiding of urine or fecal matter. Urinary incontinence is a common problem in nursing homes. It may be due to "neurologic abnormalities, loss of sphincter function, ...chronic bladder outlet obstruction or loss of cognitive functions" S te d m a n ’ M e d i l D i o n a ry, 26th Edition., pg. 862. Fecal (or s ca cti bowel) incontinence is "...usually due to pathology affecting sphincter control or loss of cognitive functions." Id. There are different types of incontinence, and different courses of treatment - behavioral, pharmacological, and surgical. Nursing homes are supposed to be capable of assessing the needs of individual residents to determine if they are at risk for incontinence, and implementing a course of care to prevent it. If a resident is incontinent, they may be provided proper care to prevent the effects of incontinence - the indignity, the discomfort of lying in your own waste, and the potential health problems associated with such. Bowel and bladder training programs can be implemented to help minimize incontinent episodes. Federal law requires that a resident who enters the nursing home without an indwelling catheter not be catheterized unless it is clinically unavoidable, and a resident who is incontinent of bladder receive appropriate measure to prevent urinary tract infections, and to restore as much bladder function as possible. 42 C.F.R. Section 483.25(d). 3. Malnutrition and Dehydration Malnutrition and dehydration are all too common in the nursing home setting, and a perfect example of progressive failures on the part of the facility. The results of such are commonly known and understood. Why it occurs in the nursing home setting is often that the resident requires assistance in feeding themselves or taking in liquids. When that assistance cannot be provided due to inadequate staffing, the nursing home has committed malpractice. Difficulty in eating is common with elderly nursing home residents that have a ve a zh m s se lty p ro g re ssi d e m e n ti su ch a s A l e i e r’ d i a se . T h e a b ii o f th e p e rso n to understand, or confusion about, their need for nutrition and hydration is present, so even if they can ingest food and water, they must be prompted or helped to do so. There can also be physical problems inhibiting the ability to take in food and water appropriately. For example, the resident may have tremors making it difficult to hold utensils, they may have an dysphagia making it difficult to swallow, they may have bad (or few) teeth. Monitoring for dehydration and malnutrition involves observation, weighing, monitoring fluid inputs and outputs, and various lab values, such as protein levels. Failure to meet the nutritional and hydration needs of a resident leads over time to a host of medical problems and ultimately, death. "Undernutrition increases susceptibility to infections (e.g., respiratory and urinary tract infections), interferes with wound healing, and contributes to increased hospitalizations and mortality." Nutritional Care Issues in Nursing Homes: Eating Problems, Weight Loss, and Malnutrition, by Jeanie Kayser-Jones Ph.D., Statement to U.S. Senate, Special Committee on Aging, October 22, 1997. 4. Medication Errors Medication Errors include inappropriate prescriptions, and maladministration of a prescribed medication by nursing staff. Obviously, culpability for inappropriate prescription of a medication usually lies with the doctor, although most doctors will be quick to tell you that they make prescriptions based largely upon the data, information, and assessment provided to them by the nursing home staff. This is particularly true with the prescription of anti-psychotic medications that are designed to control behavior; too often the needs of the nursing home in "handling" the resident will lead to the staff glossing over the question of whether non-drug interventions have been attempted and have failed when discussing such a prescription with the doctor. However, once a drug is prescribed it is also part of proper "administration" and good nursing practice to monitor the effects of the medication for adverse side effects, to determine if the medication is doing what it is supposed to be doing. For this, the doctor relies almost entirely on the nursing home staff. Changes in the prescription become dependent upon this monitoring. Some medications are prescribed on a "PRN" basis, or "as needed" basis. In such n s u s d s ca se s, th e n u rsi g h o m e sta ff’ j d g m e n t i b ro u g h t to b e a r o n w h e th e r th e re si e n t’ condition warrants the administration of medication. This practice, while common, adds n m o n s i lty s t a ce rta i d i e n si n to th e n u rsi g h o m e ’ o w n la b ii fo r th e d ru g ’ u se ; i b e co m e s a nursing judgment as to whether a drug should be administered at the time. While this decision may be rather benign, for instance, when it comes to mild pain medications, in cases of anti-psychotics or other powerful (and potentially dangerous) medications, that nursing home judgment had better be well memorialized in the form of accurate charting characterizing the condition leading to the decision leading to the decision to administer the medications, the other non-drug interventions attempted and the results, and a record showing the monitoring of the resident after the administration of the drug. Certain drugs are psychoactive and are designed to control or modify behavior. The improper use of these drugs can be characterized as a "chemical restraint." The use of chemical restraints is illegal and will subject the nursing home to a claim for malpractice. The April 1, 1992, Surveyor Guidelines published by the Health Care Finance Administration ("HCFA") define a chemical restraint as a "psychopharmacological drug that is used for discipline or convenience and not required to treat medical symptoms." Put another way, psychoactive drugs used to treat behavioral problems as a substitute for good care practices are chemical restraints. Commonly used anti-psychotics are Mellaril, Trilafon, Stelazine, Navene, Haldol, and ta n ve n s ln L o xi i e . T h e u se o f p sych o a cti d ru g i cre a se s a p e rso n ’ ch a n ce o f fa li g a n d fracturing a hip, being able to urinate, developing pressure sores, and having infections. "Avoiding Drugs Used as Chemical Restraints: New Standards of Care," NCCHR 1994, pg. 4. In addition, the following side effects are possible: drowsiness, dry mouth, blurred vision, constipation, more agitation (rather than less!), confusion, hallucinations, repetitive movements of the tongue, head, fingers, toes (tardive dyskinesia), and excessive sleep. Id. D. Screening Tools The most important pieces of evidence in a nursing home neglect case are a patients medical records, facility reports and internal/external investigation. Without a clear violation of a recognized standard of care, the potential claim has a high probability of failure. The primary reason that such cases should be avoided is the inability for a resident and their family to establish a compensable claim. In addition, several other factors are important: a. Are the injuries significant and easily understood. b. Is the injury an isolated incident or is it consistent with a pattern of corporate malfeasance. c. What role has the family played as advocate and supporter of the resident. d s o ca sto ts a o p yi d . W h a t w a s th e re si e n t’ p ri r m e d i l h i ry a n d i re l ti n sh i to th e u n d e rl n g complaint of neglect. e. What type of communication was there between the health care professionals and the nursing facility. f. What is the nexus between the alleged negligent care and the responsibility of the facility. Are there other causes for the injury? g. What are the residents personal characteristics. i.e. mental capacity, obese, tobacco user, alcohol abuse. h. Who will bring the claim for damages and their relationship to the resident.
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