Common Issues In Nursing Homes - In Detail

There are some common issues that often arise in nursing home liability cases. We have outlined a number of them in detail below.

  • Staffing: The first issue is the staffing. In a nursing home, like a hospital, one-on-one care is simply not possible. If an elderly person or their loved wants one-on-one care, they need to hire a personal attendant and have 24-hour access to medical personal. Almost no one can afford this level of care. They have to look to a nursing home, which is governed by many rules, guidelines, and minimum standards set by statute and by common law.
  • Individual attention: There is also a limit on the amount of care a nursing home can afford to provide. Residents or their loved ones cannot afford to pay the nursing home for one-on-one or even greater individual attention. They rely on the nursing home staff. There are often too many residents. The reimbursements paid from the government or even in private facilities, where residents are paying for themselves, cannot cover the costs of one-on-one care. Consequently, no matter how much care is given, residents are often unattended and they can injure themselves.
  • Use of restraints: Elderly people are no different than anyone else. They want to free to do what they want. Hospitals will restrain a patient, sometimes literally tying them to the bed. One thing that most people do not know is that nursing homes are "restraint-free." In a nursing home, it is against the law to restrain a restless or active resident simply because the resident is at risk of an injury. What this means is that, absent a doctor's order—which is rarely give— residents in nursing homes cannot be restrained in chairs or beds. This is far different from hospitals where patients are regularly restrained if they are in danger of eloping from the facility or injuring themselves. Not realizing that nursing homes are restraint-free, many loved ones believe that any injury involving a slip and fall should and could have been prevented.

Ulcers And Sores In Nursing Home Liability Cases

The most significant aspects of nursing home liability are pressure ulcers or decubitus sores. Some ulcers are caused by vascular problems. These are called "stasis" ulcers and a vascular specialist is needed to identify such ulcers which are not caused by pressure.

One of the issues constantly raised about pressure ulcers is whether there was turning and positioning by the staff (Certified Nursing Home Attendants or "CNAs"). Generally the records, which show the turning and positioning of a number residents, are kept separate from the individual records and can be difficult to locate. Sometimes, the CNA is careless in recording the care given. Rarely, a CNA does not turn and position the resident. Whatever the reason, turning and positioning records are large source of controversy in a pressure ulcer case, and a skilled plaintiff's attorney will attempt to raise issues with the sufficiency and accuracy of the turning and positioning logs.

Often, pressure ulcers may be inevitable. There are various types of pressure ulcers. There are unstageable ulcers, meaning they cannot be classified. "Stageable" pressure ulcers range from Stage I to Stage IV (most severe), and are ones that can be measured. There also Deep Tissue Injuries or DTIs which are lumpy purplish wounds, generally located in the sacrum area at the base of the back, which may turn into something worse in a very short timeframe. Even when there is consistent, proper turning and positioning, and where the staff is trying to do all they could do to prevent ulcers, they develop.

Another area of concern is the "staging" or evaluation of an ulcer. Evaluations are subjective. One medical professional may record an ulcer as "Stage II" while another would have recorded it as a "Stage III." This can also be problematic, as inconsistent staging or evaluation can appear to show a lapse in the standard of care or a degradation of the wound on the facility's watch. Again, a skilled plaintiff's attorney will pick up on these inconsistencies during the course of litigation, particularly at trial, and attempt to leverage them during settlement discussions or mediation.

Other morbidities or co-morbidities are most often the cause of the ulcers. Examples of co-morbidities in elderly residents include dementia, coronary atherosclerosis, congestive heart failure, hypertension, diabetes, atrial fibrillation, peripheral vascular disease (PVD), hypothyroidism, and hyperlipidemia. Poor nutrition may also be a factor. Often, we see elderly nursing home residents who become depressed at their new loss of independence, which impacts their desire to eat and, in turn, makes them more prone to ulcers. Indeed, some loved ones refuse to allow alternate means of feeding and such a refusal becomes a major cause of their loved ones' ulcer development. In analyzing nursing home cases, it is necessary to understand that ultimately many of the residents are very sick and will develop pressure ulcers no matter what care they receive because of poor or compromised skin integrity.

Lastly, in New York, nursing homes are subject to Article 28 of the Public Health Law which requires that the nursing homes provide all reasonable care to the residents. Unlike the typical negligence case, where the burden of proof is on the plaintiff to show negligence, the burden of proof to show that all reasonable care was provided is on the nursing home. These complex cases require the assistance of skilled lawyers both in the preparation of the defense and at trial. We provide that service on an economical basis.

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