If you are a loved one of a person in a nursing home, you should be on the lookout for certain nursing home abuse warning signs:
- Bed sores also called pressure sores
- Poor hygiene
- Bruises
- Unexplained falls
- Inadequate staffing
- Dehydration
- Medication errors
To prove nursing home negligence it is necessary to establish that the care that has been provided to the resident is substandard and that substandard care resulted in injury to the resident.
Nursing homes and long term care facilities need to be held accountable for harm that they cause. If you think you or a loved one has a basis for such a claim, contact us.
Researching nursing homes
If you think you have a basis for a claim against a nursing home or a long term care facility, you may want to search Medicares site dealing with nursing home care. This site provides information about all facilities that are Medicare or Medicaid certified.
Any facility which accepts Medicaid funds must also abide by the pertinent regulations establishing standards for care in these facilities. Many of these regulations are put out by the Health Care Financing Administration (HCFA) and are administered through the states.
Medicaid-certified facilities are evaluated every year and are required to meet federal and state certification, licensing and performance standards. Medicares Nursing Home Compare program provides information about nursing homes as to ownership, whether they are for profit and other valuable information.
Nursing home standards
The so-called watermelon book (a reference to its color) is formally known as the Long Term Care Survey and is published by the American Health Care Association. It contains the federal regulations from the Centers for Medicare and Medicaid Services (CMS) that guide nursing home staff. The comprehensive regulations contained within this book are also referred to as F-tags. They are published also in the Federal Register. These F-tags set forth basic standards as to nursing home care. They are critical in terms of evaluating cases from a litigation point of view.
In terms of litigating nursing home cases, it is important to take the deposition of the nursing homes medical director whose responsibility is set forth in F-tag 501. The medical director of the nursing home is probably going to be your best witness in terms of confirming that the F-tags indeed establish the standard of care for nursing homes. These regulations can be found at 42 C.F.R. §483.
Issues in nursing home litigation
In the course of nursing home litigation a number of different issues can arise. Many nursing home cases involve pressure sores or bed sores. A typical defense asserted by the nursing home is that these bed sores are in fact terminal ulcers that are unavoidable. Under F-tag 314 you have a strong argument to make that a bed sore cannot be characterized as unavoidable unless all appropriate efforts have been made to prevent it and to heal it.
Another frequent issue in nursing home cases is general staffing. The fewer the number of staff people that are on duty at any given time the greater the profit for the nursing home. The staffing to patient ratio needs to be closely looked at.
In addition, within many nursing home contracts there are mandatory arbitration clauses. These deprive the patient of the right to a jury trial. It is important to look at the contract and if in fact there is a mandatory arbitration clause it needs to be evaluated as to whether or not it is enforceable.
The nursing home industry is very sophisticated. What many nursing home corporations do is to establish an intricate network wherein the nursing home operation is conducted by one legal entity, the building and grounds are owned by another legal entity and the staff may even be provided by yet a third legal entity. That creates a difficult network of corporations that potentially may need to be pierced if there is inadequate insurance coverage. Some factors to consider in determining who really controls the nursing home are:
- It may be necessary to take the depositions of employees from the bottom up to find out who is really in control.
- Request the pay stubs of all empl0yees you depose.
- Show the policy and procedure manual to all employees you depose to get them to confirm who prepared this manual and that the manual governs their behavior.
- Ask all employees if they are on a bonus system and if so how the bonus is determined and who pays it.
- Get the email address of all the employees you depose as this may show who is in charge
The key to winning a nursing home case is to focus on the nursing home not on the patient:
- Show the number of statutory violations committed.
- Show the number of instances where the internal rules and admissions contract of the nursing home were violated.
- Show the understaffing by obtaining employee lists, employee files, census and acuity records and that the nursing home was putting profits before patient care.
- Show the pay level of the nursing home staff and how it compares with the local fast food restaurants.
- Obtain incident and accident reports involving the patient pursuant to 42 CFR483.10(b)(2).
- Show the jury they are empowered to make the defendant take responsibility for its conduct.
- Show the jury what the nursing home has taken from the patient and that the patient s entitled to be paid for the loss.
All of these are issues that need to be considered by a nursing home lawyer. If you have a question about a nursing home case, contact us.
