Defending the Two Most Common Nursing Home Injuries
The two most common injuries at nursing homes bedsores and falls. In lawsuits, these injuries are always portrayed as the fault of negligent or uncaring employees nursing home staff. Rarely is this true. The injuries are almost always no one’s fault. They are the inevitable result of the aging process in the case of bed sores and a combination of the elderly person’s need for dignity and the rules preventing restraints in the case of fall.
At our firm, we know what to look for in the records to show that the nursing home is not at fault. It also takes a thorough investigation at the nursing home to find out exactly how the injury happened. Early on in the defense, we have a solid understanding of what happened. We can also tell, early on, if the nursing home may be at fault.
Bedsores or Skin Breakdowns
• The assumption is that a stage IV pressure ulcer developed at a nursing home was caused by the failure to provide the basic care of turning and positioning the resident to prevent the ulcer, referred to as a breakdown or decubiti. It is rare case when it can be proven that the turning and positioning was down.
• Proper investigation, leads to an altogether different truth: many ulcers are unavoidable or unstageable. Some are what is a called a Deep Tissue Injury “DTI” which is not discoverable by a medical examination and develop rapidly.
• The most common explanation is that at an advanced age, nearing the end of life, the resident cannot, even with nutritional supplement, cannot ingest enough nourishment to maintain skin health. An example is the Kennedy terminal ulcer (‘KTU”) which develops quickly when the resident no longer accepts nourishment and is approaching the end of life. Unfortunately, no amount of turning and positioning will make a difference.
• First and foremost, the turning and positioning documentation must be found and produced. Once that is accomplished, a thorough investigation can likely determine that the bedsore is not the result of the lack of care, but was inevitable.
Falls of Unrestrained Residents
Whenever someone falls at a nursing home and breaks a bone, the assumption is that the falls was completely preventable, and that the nursing home failed to provide adequate restraints or allowed the resident to go about on their own. This is never the case.
If the resident is capable of moving about, they cannot be restrained. By law, nursing homes-unlike hospital which can literally tie a patient to the bed-cannot restrain a resident without a court order. A restraint-free environment, together with residents who want to feel free as they live their lives, will lead to falls, often within footsteps of attentive nursing home staff.
Where the resident is at risk of falling, this risk is taken into account by the nursing home. The care plan often requires that the resident be provided with assistance by one or sometimes two aides. This is called a “two-person” assist. Alarms are used and padding is placed around wheelchairs and beds. But falls still occur because a resident who, by law, is unrestrained may spontaneously get up and fall. The fall happens even when the resident is at the nursing station because the staff is concerned that the resident might get up and fall. More than one would imagine, even with alarms and close proximity to staff a resident simply gets up and falls. These cases are defensible through legal defense.
At Melito & Adolfsen P.C., we defend nursing homes.
• We make sure we understand the facts of these cases fully.
• We provide a thorough defense. We have lawyers experienced to defend vigorously, compromise intelligently and, if needed, go to trial.
• We also work with nursing homes on front-end compliance, before problems occur.
• In compliance audits, which we can perform, our goal is to show that you’ve done all you can under New York Public Health Law Section 2801-d of New York law to provide reasonable care.
Knowledge and experience matters when it comes to defending nursing homes against allegations of malpractice. Our team truly understands why nursing homes and their insurance companies shouldn’t “roll over” and agree to a settlement.
Call us at 212-238-8920 or email us today.