Nursing Home Litigation: Elder Abuse

Do you have a loved one who has suffered new injuries at a nursing home? Do you have a loved one who is suffering from neglect? If your loved one is being abused or neglected in a nursing home, you have the right to assert your loved one's rights. If you are the guardian or hold power of attorney, you may file suit on behalf of your loved one. If you do not have this legal significance, you may notify the guardian or power of attorney. If there is no guardian or power of attorney, you may be able to initiate guardianship proceedings.

According to the U.S. Census Bureau, in 2008, there were 711 nursing homes in Pennsylvania and 79,710 people living in those nursing homes. The Pennsylvania nursing homes had the capacity to house 87,878 people in 2008.

We send our loved ones to nursing homes because nursing homes can provide the medical care and attention that our loved ones need. Often, those loved ones suffer from dementia or other medical conditions that make it impossible to properly care for them at home. The nursing home is supposed to make life better and more comfortable for our loved ones.

Unfortunately, significant problems have arisen at nursing homes throughout the nation. Law suits alleging over-drugging, the use (or non-use) of restraints, neglect, dropping, exposure to the elements, bed-rail injuries, and even over-billing of Medicaid have arisen in the past decade. Nursing homes have increasingly become a target of litigation as the public gains more insight into what goes on at nursing homes when visitors aren't present.

Over-drugging refers to the unnecessary use of psychotropic pharmaceuticals, which make life easy on the staff, but often ignore the needs of the patient. According to a recent New York Times blog article, in one Minnesota nursing home, a patient who moaned and cried constantly was given a cocktail of Ativan, Risperdal, and an anti-depressant. The nursing home entered her into a new program that was designed to wean patients off of psychotropic drugs. Once this particular patient was out of the "fog" of drugs, she explained that she had been unable to talk while taking the drugs. She further explained that she had been moaning for months because she was suffering from physical pain, and that she did not have the ability to tell the staff about her pain while on the drugs. However, in many nursing homes, psychotropic drugs are commonly prescribed, despite a federal law allowing psychotropic drugs only to ensure the safety of the patient or those around the patient.

The opposite of over-drugging is drug withholding. Nursing homes have been accused of withholding a patient's prescription drugs. At a Connecticut nursing home, there were at least 18 cases where nurses failed to administer drugs as prescribed, including a number of drugs for diabetic patients. Fortunately, no injuries or complications were reported, but for some unknown reason, patients in a fragile condition were not given their drugs- a potentially fatal oversight.

Physical restraints were once commonly used in nursing homes to keep patients immobilized. However, as awareness of the practice grew, many nursing homes refused to use them, and now, several nursing homes advertise themselves as "restraint-free." However, some elderly patients are particularly prone to falling, either while walking or sitting in a wheelchair. In these cases, if the nursing home knows that a patient is prone to falling, failure to use restraints in certain situations can be a source of liability against the nursing home. Physical restraints are still a controversial topic, but there are occasions that they may be appropriate. However, there still are many more cases where physical restraints are inappropriately used.

Over-drugging and physical restraints are two primary causes of a major problem in nursing homes: bed sores. Bed sores, also called pressure sores or decubitis ulcers, develop over time when a patient is left in the same position for lengthy periods of time. Bed sores develop in stages. The first stage is a superficial wound that heals on its own, but the fourth stage is so severe that skin, muscle, and bone are severely impacted to the point of necrosis and the risk of fatal infection is extremely high. As the severity of a bed sore increases, so does the pain. However, the sufferer probably is unable to move him or herself off of the sore, and must helplessly endure the incredible pain.

Bed sores develop in nursing homes for a simple reason: neglect. Patients left in a stupor from over-drugging or restrained in bed or to a chair are particularly susceptible to bed sores. However, preventing bed sores is also relatively simple: patients need to be moved from time to time, and regularly cleaned and dried. When a patient is moved, there is a risk to the patient of being dropped, an occurrence that is increasing in frequency. If your loved one is immobile, it is up to you to ensure that the nursing home is doing everything it can to prevent bed sores from appearing.

Another common form of neglect is malnutrition. According to a study by the Commonwealth Fund, as many as 85% of nursing home residents are suffering from malnutrition. Moreover, in some nursing homes, as many as 50% of the residents are underweight. Causes of malnutrition include understaffing of the facility, a lack of individualized care, and simply not allowing residents enough time to eat their meals. A 2010 New York Times article discussed the issue of malnutrition in Alzheimer's patients. Alzheimer's patients in particular require significant attention, because the disease eventually destroys the patient's ability to swallow. Intubation is one solution, but it is invasive and uncomfortable for the patient. Another is careful (but time-consuming) hand feeding. Regardless of your loved one's condition, it is up to you to look for signs of malnutrition. Look for pronounced weight loss, listlessness, apathy, hair or skin coloration changes, and increased water retention. In addition to malnutrition, neglect includes a lack of attention to hygiene, so look for signs that your loved one is not receiving basic hygienic care, like showers and dental care. Bed rail injuries are a recent hot topic in nursing home litigation. As elderly patients become weaker and more susceptible to falling, bed rails become useful. Patients can use the rails to move themselves, and the rails prevent a patient from falling while asleep. However, the rails are hazardous to a subset of the elderly population. Patients may become trapped and choke to death in the rails. If an immobile patient is in contact with a rail, it presents another spot where a bed sore could develop. The Food and Drug Administration (FDA) has identified 7 "danger zones" of bed rails. Each zone presents an area where a patient may become trapped. In some areas, it is possible for a foot to become trapped, like Zone 2, while in other areas, the head may become trapped, like in Zone 6.

The final major topic in nursing home litigation is the most obvious: abuse. Unfortunately, several videos have surfaced on the internet of physical and verbal abuse of patients. For instance, in one Canadian nursing home, a patient suffering from Alzheimer's and dementia fell over 45 times in his stay at the home, and in one video recorded fall, nursing home staff can be seen ridiculing the man. Other videos made with hidden cameras in the United States show staff members beating patients or yelling at them. One video from California showed staff members intentionally tipping patients out of their wheelchairs. Occasionally, other patients will act out violently and attack patients or staff. Finally, and most distressingly, sexual assaults also occur in nursing homes with some frequency.

Nursing homes are not supposed to be dangerous places. They are supposed to be safe places, capable of providing the very best of care to those who most need it. But the reality is different from the intended vision in many nursing homes. Neglect and abuse are far too common at many of the nursing homes across the United States and in Pennsylvania. If you suspect that a loved one in a nursing home is suffering from neglect or abuse, notify supervisors at the home. If you have the ability to make decisions on behalf of your loved one, legal action may become appropriate. You will need a legal team that is capable of understanding the complex issues in nursing home care as well as one that is capable of engaging in sustained and complex litigation. The law firm of Behrend and Ernsberger, P.C. has the skill and experience necessary to litigate claims against nursing homes- if your loved one needs representation, call us today at (412) 391-2515.

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