Category Archives: Advocacy

Every year, hundreds of news reports surface about nursing home staff physically or sexually assaulting patients. Physical and cognitive vulnerabilities may make it difficult for residents to report abuse or to have their reports taken seriously.  Web-enabled digital cameras offer a fantastic solution.  as a nursing home abuse and neglect lawyer, I wish we had video in every case.

Evidence suggests that even more people are putting cameras in a relative’s room to detect and deter abuse.  Seven states have passed laws expressly allowing families to monitor the care of aging relatives this way. Many states like South Carolina have no laws prohibiting the use of cameras.

While state laws regulating camera use require consent from the patient or a family member. Many residents are unlikely to be consulted about camera installation, because they lack, or are perceived to lack, capacity for consent. In these cases, children often act as parents’ legal proxy to give consent on their behalf.

Since nursing home rooms are usually shared, the consent and privacy of roommates presents an ethical problem, too. Inevitably, roommates’ conversations will be recorded, and they will be filmed when passing through a camera’s field of vision. All of the states that allow in-room cameras require that roommates or their legal representative be informed of surveillance and allowed to require that the camera be pointed away from their bed.

Webcams are a consumer response to the United States’ inadequate long-term care system. Long-term care in the United States is poorly funded, primarily by Medicaid. Medicare covers acute but not ongoing services and supports.

As a result, the nursing home staff trusted to do this demanding and fraught work receive low pay and no benefits. Turnover is particularly high among caregivers who provide the most hands-on, intimate care in American nursing homes.  With better pay and working conditions, nursing homes could attract more direct-care staff who would stay in their jobs longer and be more invested in their workplace. Nursing assistants could get to know residents, and keep a better eye on them. Enhanced training on recognizing and reporting abuse would also promote accountability.

 

Potential dangers of many products are left under court seal, likely endangering consumers in the end. By allowing evidence in product-liability lawsuits to be sealed and filed under secrecy, the health and safety of patients is greatly impacted.

After Kelly Phaff’s husband, John, committed suicide in 2013, she was sure of the cause: an anti-balding drug, Propecia, by the pharmaceutical company, Merck & Co. She had noticed the negative effects that the drug was having on him; random bouts of anger, depression, and reduced sex drive. Although John stopped taking the medicine when he realized how it was affecting him, his lack of sleep as well as his suicidal thoughts and panic attacks continued. After his death, Kelly filed a lawsuit against Merck & Co. alleging that they withheld that Propecia could lead to continual depression and sexual dysfunction after the patient ends usage.

Kelly is not alone in her filing, more than 1,100 people have filed against Merck & Co. for not sufficiently cautioning patients of the potential effects and aftereffects of taking Propecia. Merck claims to have clearly stated the information from clinical trials, including the potential side effects. However, Merck rejects the idea that the effects could continue after stopping usage or cause mental health problems to arise. These claims are disputed by documents showing that Merck knew the damaging effects on sales that informing the public of possible long term effects would have on Propecia.

The larger issue becomes that physicians cannot accurately prescribe medications if they are given only half the information while the other remains sealed in court. Patients cannot rely on the label any longer when results are not clearly reported and excludes people who drop out of trials.

Only in 2012 did Merck add to the U.S. label that acknowledging possible sustained sexual issues would occur. The lack of transparency of courts and pharmaceutical companies, is ultimately made apparent, but often at the expense of the patient.

Joel Marrable, who was a Vietnam War veteran serving in the Air Force, was staying at the Eagle’s Nest Community Living Center on the Veterans Affairs Medical Center’s campus in DeKalb County, Channel 2 reported when he was found covered in ants leaving him with more than 100 bites, his daughter told Channel 2 Action News. Laquna Ross said her father was living in insect-infested conditions.

He served his country in the Air Force, and I think that he deserved better,” she told Channel 2.

Ross visited him last week and noticed he had dozens of swollen red bumps, Channel 2 reported. Both of his hands were swollen with bites. She said the staff never told her before she arrived what happened. However, when she asked, she said she received a nonchalant answer.

“(The staff member) said, ‘You know, the ants,’” Ross said. “The staff member says to me, ‘When we walked in here, we thought Mr. Marrable was dead. We thought he wasn’t even alive, because the ants were all over him.’”

Ross told the news station the ants weren’t just on her father, but they also plastered the ceiling, walls and beds. The staff members cleaned the room, but she said the ants returned the next day, with the same results.

The VA sent the news station a statement that apologized, adding that actions have been taken to address the ant problem.

All bedrooms at the nursing home were stripped, cleaned and inspected for ants. In addition, all open containers and open food items were removed from all bedrooms, the VA said. Why wasn’t this done before?

We have seen similar cases of abuse and neglect.  If you need a nursing home abuse and neglect attorney, please call us.

 

As a nursing home abuse and neglect lawyer, I know that adequate and competent staffing is the most important factor for quality care.  One of the factors that affects care is staff turnover.  one of the major reasons for high turnover is burnout and lack of a compeititive wage.  Well, at least one nursing home operator has it figured out by raising entry level wages to $17 per hour.

Illuminate HC has a pay rate of $17 per hour for certified nursing aides at the rapidly growing operator. The $17 wage, which went into effect last fall, has made a distinct mark.   While the high CNA wage admittedly caused some frustration — among better educated nurses, for example — it also created unexpected waves of competition.

“It was good, certainly, for morale,” founder and CEO Yair Zuckerman reported. “The thought behind the wage increase was it would allow us to start getting selective. And it was important for them to see even before the turnaround could get successful we’re investing in the team.”

“People working in social services or the kitchen are saying, ‘I want to be a CNA,’” Zuckerman explains. “Whereas before a lot of people said, ‘I’m making the same money with a mop or a skillet,’ now they’re saying, ‘That’s hard work, but maybe it’s worth my getting certified.’”

Frontline workers “make or break” a facility, he believes. “We put them on a pedestal. If these people do a great job, we’ll have a quality building. Now we’re beating the Whole Foods and Walmarts and Targets. We’re getting a different breed, so to speak.”

 

 

McKnight’s reported that the Medicare system is spending “significantly” more money on post-acute care for patients when compared to those who have commercial insurance, despite it not being clinically more beneficial, a new study has found. The study was published in the September issue of Health Affairs and funded by the National Institute on Aging.

Researchers discovered that despite the difference in spending there were no significant differences in hospital readmission rates between the groups.

“When we looked at just the length of stay of SNFs (skilled nursing facilities) while comparing patients, (we found) longer average length of stay for Medicare patients,” Scott Regenbogen, an associate professor of surgery at the University of Michigan, told McKnight’s. “There may be clinically unwarranted longer lengths of stay among Medicare beneficiaries.”

Researchers used data from more than 25,000 patients throughout the state for the study. They then used a regression discontinuity design to compare post-acute care use and costs between seniors in their 60s who have traditional Medicare coverage or private insurance. They also focused on post-acute care received at skilled nursing facilities, at home and at inpatient and outpatient rehabilitation facilities.

Based on the findings, Regenbogen suggested post-acute care providers may want to be “really judicious with the volume of services they provide and conclusive of which of the post-acute care services are translating to better post-hospital outcomes.”

 

Penn Today had a fantastic article that helps explain why short-staffing causes care not to be provided; this will help nursing home abuse and neglect attorneys like myself show the dangers of short-staffing. Data proves that there is a direct causal relationship between job burnout, dissatisfaction and incidence of missed care reported by registered nurses (RNs). The results are published in the Journal of the American Geriatrics Society (JAGS).  72% of RNs reported missing one or more necessary care tasks on their last shift due to lack of time or resources. One in five RNs reported frequently being unable to complete necessary patient care.

“For years, extensive evidence from hospitals has shown that nurses are more likely to leave necessary patient care unfinished when employed in settings with insufficient staff and resources.  This “missed care” has been linked to poor care quality, increased adverse events, and decreased satisfaction with the health system. New research—from Penn Nursing’s Center for Health Outcomes and Policy Research (CHOPR)—finds similar evidence in nursing homes specifically, and identifies the strong relationship between missed care, nurse burnout, and job dissatisfaction.

McKnights reported on an interesting legal fight in Massachusetts that will assist nursing home abuse and neglect lawyers.  The issue revolves around using a consumer law to get the nursing home to provide records about a loved one’s care.  After Sandra Montanez received incomplete nursing home records for her mother nearly two months after a written request, the Court ruled that she was justified in using a state consumer law to sue. Montanez requested medical records as guardian for her mother, the Court held it was appropriate in using the law given the paperwork in question was central to the “entrepreneurial and business aspects of providing medical services,” the Massachusetts Appeals Court said.

Montanez sought records multiple times for Benita Sanchez after the older woman moved out of Lexington Healthcare Center in Lexington. The nursing home only supplied partial records of Sanchez’s care between Jan. 1, 2013 and her transfer in August 2013. Lexington declined to send a full set of certified documents even after Montanez’s lawyer notified the owners that previous copies were incomplete, according to the ruling.

Under federal law, nursing homes have 48 hours to provide documents in response to a request for medical records.

In mid-2014, Montanez sued the home’s owner, 178 Lowell Street Operating Co. LLC, asking for damages and an injunction forcing the nursing home to provide complete records for copying and inspection.

The defendant’s repeated omission of documents from its disclosures to the plaintiff, its failure to produce complete records for approximately four months, and its offer to allow the plaintiff to inspect and copy its records only (and immediately) after litigation commenced constitute violations of Federal regulation in ways that qualify as unfair or deceptive,” Justice Peter J. Rubin wrote in his opinion.

The court also noted that while Sanchez died during the appeal, the cause of action survived because it involved contractual claims.

The New York Times had a great article on the false promises and the Big Lie of the Assisted Living industry.  They sell themselves as the solution to everyone’s worries about old age built on the unrealistic dream that we will grow old while being self-reliant and live that way until we die.  The irony of assisted living is, it’s great if you don’t need too much assistance. But if you have trouble walking or using the bathroom, or have dementia and sometimes wander off, assisting living facilities aren’t the answer.

The assisted living industry is all about profit and has a financial interest in sustaining a belief in this old-age nirvana. Originally designed for people who were mostly independent, assisted living facilities have nearly tripled in number in the past 20 years to about 30,000 today. It’s a lucrative business: Investors in these facilities have enjoyed annual returns of nearly 15 percent over the past five years — higher than for hotels, office, retail and apartments, according to the National Investment Center for Seniors Housing and Care.

But when it comes to direct care, the facilities are often lacking.  Families and residents don’t realize that these facilities are not designed to provide more than minimal help and monitoring. Even those that advertise “24-hour” monitoring may have someone present round-the-clock on the premises, but may not have sufficient staff to actually monitor and assist the large number of residents.

“People’s defense against something horrible happening is, ‘Well, they have a right to be independent,” she said. “‘Yes, he did walk up the stairs with his walker and fall down and die, but he had a right to do that.’ That’s a horrible defense. You don’t just allow people to do unsafe things.”

Most residents of assisted living need substantially more care than they are getting. Half of those residing in assisted living facilities in the United States are over the age of 85, the Centers for Disease Control reports. The number of people 85 years of age and older in the United States will nearly triple to about 18 million by 2050, according to the Census Bureau.

“When you say nursing home, people say, ‘Yuk,’” said Eric Carlson, the directing attorney for Justice in Aging, a national advocacy group for low-income older Americans. “When you say assisted living, a lot of people say, ‘That sounds good.’ Nobody realizes the system is broken.” When something bad happens to a resident of an assisted living facility, “They just think it was that facility that was horrible,” he says.

Part of the problem is a lack of regulation. The federal government does not license or oversee assisted living facilities, and states set minimal rules.  Not surprisingly, complaints against assisted living facilities are mounting in courts around the country.

Assisted living has a role to play for the fittest among the elderly, as was its original intent. But if it is to be a long-term solution for seniors who need substantial care, then it needs serious reform, including requirements for higher staffing levels and substantial training.

That will raise prices, and assisted living already costs between about $4,800, on average, each month, and nearly $6,500 if dementia care is needed, according to the National Investment Center, a group that analyzes senior housing reports.

 

 

Flagler Live had an interesting article about a controversial issue in long term care especially for nursing home abuse and neglect lawyers who emphasize the sanctity and value of life.  The issue is senior suicide or “rational suicide”.  A six-month investigation by Kaiser Health News and PBS NewsHour finds that older Americans are quietly killing themselves in nursing homes, assisted living centers and adult care homes.  Descriptions KHN unearthed in public records shed light on residents’ despair: Some told nursing home staff they were depressed or lonely; some felt that their families had abandoned them or that they had nothing to live for. Others said they had just lived long enough: “I am too old to still be living,” one patient told staff. In some cases, state inspectors found nursing homes to blame for failing to heed suicidal warning signs or evicting patients who tried to kill themselves.

In a nation where suicide continues to climb, claiming more than 47,000 lives in 2017, such deaths among older adults — including the 2.2 million who live in long-term care settings — are often overlooked.  Analysis of new data from the University of Michigan suggests that hundreds of suicides by older adults each year — nearly one per day — are related to long-term care. Thousands more people may be at risk in those settings, where up to a third of residents report suicidal thoughts, research shows.

The fact that vulnerable residents are managing to kill themselves in what are supposed to be safe, supervised places raises questions about whether these facilities pay enough attention to risk factors like mental health, physical decline and disconnectedness — and events such as losing a spouse or leaving one’s home.

 

 

 

Low wages, high staff turnover and short-staffing have combined to create a “resident care crisis in Rhode Island nursing homes,” according to a report released by the District 1199 SEIU New England union.  A coalition of groups called for legislative action to remedy the situation during a press conference at Bannister Center.  The coalition is calling on the General Assembly to establish a minimum staffing standard of “4.1 hours of care per resident per day.” It also seeks an increase of the starting wage for a CNA to “at least $15 per hour” and “and a focus on training and workforce development moving forward as immediate first steps towards resolving Rhode Island’s resident care crisis.”

“Rhode Island nursing homes are understaffed and Rhode Island caregivers are underpaid,” certified nursing assistant Shirley Lomba said. “When our residents have more time with their caregivers, they have better outcomes. The lack of staffing standards forces us to rush through the very basics of care and doesn’t give us any time to answer questions or even just chat with our residents; basic things that are necessary to maintain quality of life.”

The eight-page “Raise the Bar on Resident Care” report states that CNAs in Rhode Island earn $14.42 an hour, compared to $15.54 in Massachusetts and $16.18 in Connecticut.  In comparison, the majority of CNAs in South Carolina get a little above minimum wage and rarely exceeds $12.00.

“I know that the people who provide residential care are engaged in holy work,” said Rabbi Jeff Goldwasser, of Temple Sinai in Cranston. “They are the ones who pay attention to the needs of our elders, who care for some of the most vulnerable in our communities…

“It is our obligation as a society to make sure that these workers are treated according to the dignity of their profession. Nursing home residents deserve consistent staffing to assure that they are cared for, appreciated, known and valued. Nursing home workers deserve to work in an environment where they can see that the residents they care for are treated with dignity and love.”