Nursing Home Law Blog : Nursing Home Lawyer & Attorney : Stark & Stark Law Firm : Elder Care, Senior Care

While nursing homes should always look to prevent bed sores – a painful and sometimes deadly condition – a recent study conducted revealed that the prevention of bed sores is also cost effective.

Foam mattresses which reduce pressure were found to be cost-effective 82% of the time as opposed to using standard mattresses. This simple change could save on average $115 per resident. Additionally, foam cleansers for incontinence were found to be cost-effective 94% of the time, as opposed to traditional soap and water, which results in an average savings of $179 per resident.

On average, roughly 10% of residents in long-term care facilities have a pressure ulcer. And for those residents, treatments are critical early on in order to prevent a serious, and even life-threatening condition. A better solution to this problem is prevention. Nursing homes and assisted living facilities can, and should, prevent these problems from happening rather than treating them after the fact. Most importantly, not only are these prevention techniques the right thing to do, but they also save money for the facility!

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A recent article in the Star Ledger, Stronger safeguards needed in N.J. hospitals, nursing homes, asks the questions, “Should corporate lobbyists decide whether safe equipment and procedures are needed if you or a loved one have to go to a hospital or nursing home? Or should health care professionals make those decisions?”

All too often high power corporate interests utilize lobbyists to cut corners, increase profits and put patients at tremendous risk. In this recent article, we see how this plays out in ways that not only harm nursing home residents and hospital patients, but also places healthcare workers at risk. 

 

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I have had cases where a person suffers from a bed sore that is so large the spinal column is visible, and yet the cause of death listed on the death certificate states, “natural causes”, or “dementia”, or “Alzheimer’s”.  While we may still pursue a claim to hold those responsible for the large and painful wound accountable, it is frustrating to the family that the bed sore is not listed on the death certificate. 

We are currently prosecuting cases where had a resident not been taken to the hospital and died in the nursing home, the true cause of death would have never been discovered. 

Unfortunately, this situation is far from unusual. As reported in ProPublica, suspicious elder deaths are rarely investigated.  According to the article, autopsies performed on seniors are increasingly rare even though the United States population aged 65 and older has grown. From 1972-2007, the number of autopsies performed on seniors dropped from 37% to just 17% percent. Additionally, of the 1.8 million seniors who died in 2008, autopsies were performed on only 2%, and only performed on 1% for those elderly who passed away in nursing homes or care facilities.

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The Federal Government has joined in a Whistleblower suit, which alleges that AseraCare, a national hospice company owned by Golden Living, wrongly took advantage of Medicare’s hospice benefit by pressuring its employees to place people into hospice who weren’t dying. The suit states that AseraCare first recruited patients who are eligible for skilled nursing care for 20 days, for which Medicare pays the entire bill. After 20 days, when Medicare requires patients pick up a part of the tab, AseraCare had the nursing homes send the patients to hospice, according to the lawsuit. In hospice, AseraCare would collect a flat payment from Medicare for each day they are enrolled.

We will follow this story on our blog and the recurring problem that appears to be growing on a national basis throughout both nursing homes and assisted living facilities. Here is an article relating to the government’s press release on the suit.

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With the passing of the Affordable Care Act (ACA), this nation has seen the beginning of a dramatic shift in both the delivery of healthcare and the means by which payment is made for medical services.  Under the ACA, a new type of medical agency was created, known as Accountable Care Organizations (ACO). These entities are required to coordinate all levels of care in a fashion that is both more efficient and better focused on the provision of quality care.

As we have written on our blog, hospitals will no longer be paid to rectify medical errors which have been deemed as “never events.” This is a class of medical error which non-profit research groups and the federal government alike have determined to be wholly unacceptable in the hospital context. ACO’s are being organized to help prevent the occurrence of never events.

At present, we may be at a crossroads in terms of whether ACO’s will be lead by physicians or hospitals.  Either scenario has its share of opportunities and pitfalls. The New England Journal of Medicine has been following ACO issues and includes some excellent commentary.

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When first selecting a nursing home, the majority of people I meet have very little knowledge of how nursing homes work, how they operate, and how they are regulated.  Making this situation worse is the fact that selecting a nursing home must often happen quickly.

With a lack of knowledge, many people choose a nursing home solely because it looks clean and may have some modern amenities.  While these are factors a person may consider, the most important thing regarding any nursing home is that there is adequate staffing – with enough good and caring people to do the work.  Some excellent facilities are simply plain buildings with cinderblock walls and outdated furniture. 

A new study that confirms lowered staffing equals poor quality of care at some of the country’s largest for-profit nursing homes was reported in a recent article. 

The results were certainly not surprising and already known by most people working in the industry.  So, why are nursing home companies not hiring enough staff?  Simply put, to increase profit.  Staffing costs are one of the top expenses in a nursing home, and in order to drive up profits some nursing home companies staff their facilities at the bare minimum necessary to keep a facility out of trouble with the government.  

When selecting a nursing home, questions about staffing should certainly be expected.  A response that a facility tries only to meet government staffing regulations may not be good enough.  Additionally, good facilities tend to keep employees for a longer time.  A high turnover rate for aides and nurses may indicate a troubled facility.

Asking the right questions can be the key to avoiding a poorly staffed and substandard facility.  
 

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Good employee hiring practices and proper resident supervision is an important part of running a successful nursing home. When these components are missing, seriously terrible things can happen. One piece of advice I give to those with family members in nursing homes is to get to know the staff and make sure there are enough people in the building – especially on nights and weekends.

A nursing home employee of Royal Health Gate in Trenton was arrested over the weekend after a witness reported seeing the worker sexually assaulting a 56 year-old resident. Police Sgt. Steve Varn stated, “Apparently he did this to the same victim a couple of times.” According to an article in The Times of Trenton, the employee “faces four counts of aggravated sex assault for the alleged string of rapes."

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Visit Stark & Stark's Facebook page during the month of October and "like" us. For each "like" we receive in October, Stark & Stark will donate $1 to Susan G. Komen for the Cure®. October is breast cancer awareness month. Stark & Stark would like to aid Susan G. Komen for the Cure® in their mission to save lives, empower people, ensure quality care for all and energize science to find cures.

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Here is a typical scenario:

An elderly woman falls at home and fractures her hip for which she has an entire hip replacement. The family is surprised when the day after the surgery, mom begins her rehab and there is a visit from the social worker asking about where mom will go for either rehab or to permanently reside in a nursing home. The family – who has no experience picking a nursing home – is handed a list of nearby places, visits a few of them, and picks the best they can in the span of a few days. 

Usually, there is a long contract the family is presented – sometimes over 20 pages – in addition to numerous other documents.  Somewhere, buried in the middle of all this, in complex legal terms, is the arbitration clause.  A paragraph that effectively waives a person’s rights to have their case judged by a jury if something terrible happens. 

In New Jersey, these clauses used to be illegal, presumably because a person putting a loved one in a nursing home will probably sign just about anything put in front of them to get a person the care they need.  Unfortunately, these clauses are now legal in some cases and may hamper the ability to hold a bad nursing home accountable when terrible things happen.

Be careful what you sign.  Nursing home admittance cannot be conditional on agreeing to these arbitration clauses.  If you find one, you are certainly entitled to ask about it and find out exactly what it means before you sign anything.  No one who has sat in my office ever imagined the poor care and horrific outcomes their moms and dads would suffer when they were put in the nursing home.  You always hope for the best but prepare for the worst. You have an absolute right to understand exactly what you are giving away before you sign an agreement.

If you, or someone you know, has questions regarding your rights when selecting a nursing home for a loved one, please contact me. I would be happy to meet with you, free of charge, here in my firm's Lawrenceville, New Jersey office to discuss your matter in more detail.

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Earlier this year, I reported about the potential dangers posed to senior citizens (and others) who were potentially exposed to bacteria from antiseptic wipes. Reports indicate that a child may have died from such exposure and we are aware of seniors who appear to have potentially met the same fate.  Now, Federal regulators say that although Professional Disposables International (PDI) of Orangeburg, New York promised to recall the product this past June, it has since failed to launch that recall nearly four months later.

The U.S. Food and Drug Administration issued a second statement last Wednesday saying the agency was not backing down on its assertion that PDI failed to follow through on its promise to conduct a recall in June. A follow up story from the Journal Sentinel Online addresses some of the recent developments in the enforcement action.
 

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The Centers for Medicare and Medicaid Services (CMS) have recently designated certain injuries in hospitals “never events” – or injuries that should not happen. These injuries include Stage III and IV bed sores and falls with fractures. The penalty to hospitals when these injuries happen is that CMS will not pay for treatment rendered for these injuries. The result is that many hospitals are reporting the incidence of these events has gone down, and in some places tremendously.

Now, the Obama administration is doing a similar thing to nursing homes according to an article in Forbes magazine.

According to the article, a recent study showed that 25% of nursing home hospital admissions may be preventable. A further congressional review panel estimates that 14% of hospital patients sent back to nursing homes return to a hospital for a preventable condition. The Obama administration wants to penalize nursing homes that have unnecessarily high hospital admissions for preventable conditions by reducing their Medicare payments.

So, why are these residents being sent to the hospital to be paid for with your tax money? The author of the article documents that, “I’ve seen hospital emergency rooms filled with very frail seniors on Friday afternoons. Why? Because nursing homes know they won’t have enough weekend staff to care for their sickest residents, so they simply send them back to the hospital. The new rules could stop those practices.”

Perhaps hitting substandard nursing homes in the pocketbook will force them to take better care of their residents. 

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A recent article in The Bergen Record, New Jersey ranks poorly on long-term nursing care, discusses the fact that New Jersey nursing-home care is less affordable and patients are more likely to suffer bedsores or need trips to the hospital than in many other states. New Jersey ranked in the second tier of states — 22nd — for choice, affordability, quality of care and support for family members who take care of the elderly and disabled at home.

I recently wrote a post on my firm’s Facebook page discussing the implications this article, and these new findings, could have on the health care industry in New Jersey.  

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David R. Cohen, Chair of Stark & Stark’s Nursing Home Litigation Group, authored the article, The Role of Physicians in Nursing Home Litigation, for the September 12, 2011 edition of the New Jersey Law Journal.

The article discusses a common mistake made my personal injury attorneys when litigating nursing home cases: discussions with the physician. Although federal regulations concentrate on the role of the medical director in relation to the care of and operation of the nursing home, these standards are often times far from the truth. In the article, Mr. Cohen states, “72% of all medical directors spent less than one to four hours per week at facilities, and 70% indicated that the role of medical director constituted somewhere between 1 and 10% of their medical practice.”
 

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We have noted many times on this blog the importance of screening employees of nursing homes before they are placed in the role of caring for elderly and infirm residents. In this story, a nursing home employee with what appears to be a long and difficult history, along with multiple aliases, was somehow given the highest position in the facility.  

All studies show, and regulations confirm, that nursing homes have a responsibility not only to check the criminal background of employees, but also to ensure that they are of good moral character. This is a critical step in protecting our most vulnerable citizens. 

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