Nursing home abuse and neglect聽is a growing problem, and in its wake, families often don鈥檛 know how they can be an advocate for their loved ones. I recently sat down with聽糖心vlog, an attorney who litigates cases of nursing home abuse and neglect, to define the聽abuse or neglect聽and discuss the causes of the problem.
Truhowsky shares potential reasons why nursing home abuse happens and how you can intervene in situations of neglect. She also discusses the laws surrounding elder care, and how you can keep the nursing home financially responsible for neglecting proper care for your loved one.
Jaimie Blackman:聽Deborah, I am glad for the opportunity to talk to you about this. Could you please define nursing home neglect and abuse?
糖心vlog:聽Nursing home neglect and abuse can have many definitions and forms. It can be physical, psychological, or financial abuse.
Jaimie Blackman:聽Which area do you focus on?
糖心vlog:聽I focus on situations where someone is a resident or patient in a nursing home, hospital, assisted living, or home-care setting, and they are neglected or abused when they are given care or should be given care.
JB:聽Can you give me an example of common abuses that you鈥檝e seen?
DT:聽I see two main types of neglect. The first is neglect due to the failure to protect skin integrity. Unrelieved pressure from prolonged sitting or lying in bed can cause the skin to break down and the development of pressure ulcers, also known as bed sores and decubitus ulcers. 聽We most often see skin breakdown on the sacral area, hips, and heels. It is a very common type of neglect that I, unfortunately, see which can cause extreme pain and infection.
The other common type of neglect happens when the facility hasn鈥檛 taken appropriate precautions to prevent falls.
JB:聽A friend of mine went into the hospital and developed a large bedsore which then got infected, and eventually he died from the infection. Are these bedsores preventable?
顿罢:听Bedsores are staged from I to IV with stage IV being the most serious.聽 Under the NY State Regulations, the burden falls on the nursing homes to show that they鈥檝e taken all steps reasonably necessary to prevent skin breakdowns from occurring.聽 The medical literature indicates that pressure ulcers are preventable. In my experience, Medicare will not reimburse hospitals for care for pressure ulcers that progress to stage III or IV under their care.
As most of us have observed, people in nursing homes and hospitals can be found lying on their backs or sitting in wheelchairs. If they have lost their ability to turn and position themselves, whether due to a stroke or because they鈥檙e weak, they cannot turn the way we are able to turn, and if they鈥檙e left in that position for hours on end, their skin can start to break down because of the unrelieved pressure.
JB:聽Deborah, why aren鈥檛 these people being turned more often? Is it a staffing problem at the nursing home or hospital?
顿罢:听Well, I don鈥檛 like to generalize because each situation is looked at individually. However, to turn someone in the fashion that the experts say someone should be turned and positioned鈥搘hich is every 2 hours if they are in bed, or every hour if they鈥檙e in a chair鈥揻acilities need to have appropriate staff to do this. If they don鈥檛 have enough staff, or properly trained staff, or have care plans that properly address each patient鈥檚 needs, then the patient is not being turned in the proper fashion.
闯叠:听So is the burden on the family to hire a nurse or an assistant when they bring a loved one into a nursing home?
DT:聽The burden is 100% on the facility. A facility should not admit a resident or patient unless they are able to give that person proper care. That is based on regulations that the Department of Health has set forth in New York. There are specific regulations found in the New York Code Rules and Regulations and they set forth a specific standard of care that nursing homes are required to give their patients. I do encounter families who out of frustration, and if they have the financial ability, will hire someone. However, the facilities do not allow a private aid to actually turn and position a resident or patient. The aid is there as a companion or someone to be there on behalf of the family when the family can鈥檛 be there, but they鈥檙e not allowed to give care.
JB:聽That shocks me. So all they can do is nag and be a pest to the facility itself? Why don鈥檛 nursing homes comply with regulations? Are they not making enough money?
DT:聽I can鈥檛 speak to the profitability of nursing homes.聽 In my experience, poor care results from inadequate staffing, unqualified or improperly trained staff, or in the worst scenario, blatant disregard of an individual鈥檚 needs.
JB:聽Under the grim circumstances, do you promote aging in-home? We set up hospice for my parents at the end of their life. My mom was in my home under hospice care and my dad had hospice care in Florida. In both cases the care was excellent.
DT:聽In my experience, whenever someone is receiving care from an outside agency or institution, the family needs to be involved and they need to be an advocate for their loved one. They must observe and check on the quality of care and the physical condition of their loved one, because people can have wonderful experiences, as you did with your parents, or they could have circumstances where they are neglected even in home-care on a one-to-one basis. It just comes down to the quality of care a person is receiving.
闯叠:听Are you able to collect financial consideration for these patients? Is it during their lifetime or after if they die because of the neglect?
DT:聽Often we are brought in when someone鈥檚 situation is quite serious. If the proper protocols to heal wounds are not in place, then wounds can become seriously infected, sometimes to the point where the person passes away. The case can still be brought if they pass away, by their next of kin. It then becomes an asset of that person鈥檚 estate and the facility can still be held accountable even if the resident passes away. We routinely litigate cases on behalf of injured parties who have passed away. In all cases, we seek financial compensation for their pain and suffering and wrongful death, where applicable.
People often ask if they can bring an action if their loved one is in a nursing home and receiving Medicaid benefits. The answer is Yes. The Public Health Law has provisions for people in these situations allowing them to be compensated for neglect and abuse.
JB:聽If I came to you because my father has a large bedsore and is very ill, and you take the case, but afterward he passes away鈥hat are the legal challenges you face in bringing compensation to my family because of that neglect?
DT:聽The death of an individual does not make a case more difficult to litigate because the medical records are still available.聽 In most cases, family members also have clear recollections of the care given.
JB:聽In your experience, is the greater percentage settled out of court, or does it go before a jury?
DT:聽 Even though my firm has successfully settled many cases, we prepare every case as if it would be tried before a jury.
JB:聽Who puts the value on that compensation if someone dies from a bedsore? Is it your firm or the judge?
DT:聽During settlement negotiations our firm makes a demand for an amount of money that our client (and my firm) believes will compensate an individual for their pain and suffering and financial loss, if applicable.聽 If a case is tried, a jury determines the number of damages.
JB:聽Deborah thank you for sharing your knowledge on this difficult subject.
DT:聽Jaimie, before we end, I would like to acknowledge that for most people it is financially difficult to advance legal fees. Therefore, I feel it is important to know that the neglect and abuse cases that we have discussed are handled on a contingency fee basis, which means that our firm is only paid a fee if there is a recovery at the end of the case.
