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

A recent study by the National Institute of Mental Health indicated that widely prescribed anti-psychotic drugs do not help most Alzheimer’s patients with delusions and aggression and are not worth the risk of sudden death and other side effects. The study tested Zyprexa, Risperdal and Seroquel - newer drugs developed for schizophrenia that doctors are free to prescribe for any use. These drugs are commonly administered to nursing home residents. All three of the drugs carry a strong warning that they increase the risk of death for elderly people with dementia related psychotic symptoms. Yet, roughly one-quarter of nursing home patients are on these drugs. Residents are often put on these types of medications and not particularly monitored and treated for indefinite periods of time. It is strongly advised that any family member with a loved one in a nursing home speak with the loved one’s physician at the nursing home and understand the pros and cons of administering these medications.

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I am pleased to report that Governor John Corzine recently signed into law the “Independence, Dignity and Choice in Long Term Care Act.” This law is reflective of a Supreme Court decision which requires the various states in the country to offer the least restrictive setting for a recipient’s Medicaid benefits. President Bush signed an executive order reflective of this decision in order that states implement it. In sum, states must place Medicaid recipients in an environment that is least restrictive, taking into consideration the Medicaid recipient’s medical needs. From a realistic point of view, the states must offer Medicaid recipients who are capable of living in the community, as opposed to the nursing home, a chance to stay in that community. The Independence, Dignity and Choice in Long Term Care Act reflect New Jersey’s implementation of the U.S. Supreme Court decision and President Bush’s directive. For more information, concerned family members should contact the New Jersey Department of Health and Senior Services, through the Global Options Nursing Facility Transition program (GO NFT).

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In all cases involving physical abuse and assault, it is important to commence investigation very early. To the extent that it is possible, it is always advisable to involve the police and the Division of Health and Human Services/Division of Health and Senior Services. Additionally, for nursing home cases, one should contact the Ombudsman's office. Typically, these agencies can obtain valuable discovery which is not otherwise immediately available to counsel. It also serves to preserve evidence and statements of individuals who might not be available for testimony after litigation is instituted.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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In keeping with concerns over worker and patient/resident safety, workers had picketed an Edison, New Jersey nursing home, complaining that they often would work sixteen hour shifts, seven days a week at the facility. There can be no question but that these type of working conditions, in the end, endanger the safety and welfare of nursing home residents.

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Photographic evidence has become one of the most important aspects to a solid nursing home negligence case. Pressure ulcer or bedsore cases have swiftly begun to dominate the legal landscape with regard to nursing negligence claims. Litigation surrounding these injuries crosses the entire spectrum of settings where nurses practice. Namely, bedsores are found in hospital claims, nursing home litigation, assisted living claims and often times are being found for claims, which involve visiting nurses at the injured party's own residence. Liability issues related to the screening of a case include the failure to identify the patient as being at risk for a pressure ulcer, failure to report signs of deterioration of an ulcer and, at times, the failure to question or challenge the propriety of a physician's orders. Both Plaintiff and defense attorneys should work diligently to obtain all photographic evidence of skin breakdown for bedsore cases.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Nursing Home Workers' Unions and their representatives provide some of the best assurances that nursing home residents will receive the care that they need. All too often exceedingly low pay and difficult working conditions lead to low morale for caregivers who otherwise have the best of intentions in providing quality care to nursing home residents. Alarmingly, many nursing homes throughout New Jersey and the rest of the country face work slowdowns, strikes and other complaints from union members that the nursing home owners and management simply aren’t providing workers with the tools they need and compensation they deserve for this very challenging job. In Indiana, the National Labor Relations Board issued a complaint against a local nursing home for its failure to even allow union representatives to meet with their members at the nursing home. This type of conduct is unacceptable and, in the end, greatly interferes with the ability of caregivers to provide nursing home residents with the level of dignity, comfort and growth that they deserve. Of the 250 owned by the corporate organization which ran this particular nursing home, at the time of the reporting, only five had been unionized.

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Preparing and maintaining an enforceable set of healthcare power-of-attorney and durable power-of-attorney documents speeds the process of opening and investigating the claims. Similarly, developing a streamlined system to establish an estate representative, by way of direct estate work to contacts with a qualified state attorney help to accomplish this same end.

You can read more practice tips in my chapter Screening the Nursing Malpractice Case, in a text edited by Patricia Iyer, RN MSN LNCC. More information about Nursing Malpractice, Third Edition, 2007 may be found at here.

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Related to New York’s aggressive work toward helping seniors stay in their own homes, Iowa house governor, Tom Vilsick, has been working toward the same end, with Iowa’s “senior living trust,” which encourages people to have the freedom and ability to live in their own homes with greater dignity and to avoid a nursing home before they were otherwise required to go. As with New York’s efforts, this would represent a significant savings of resource in the healthcare system and, more importantly, creates a much more dignified and healthy living environment for seniors.

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In keeping with the national trend toward redirecting public funds toward homecare as a preferable alternative to nursing homes, New York governor, Eliot Spitzer, in an early January address proposed shifting away from expensive institutional nursing homes toward community and home based alternatives. As confirmed by the acting director of a local office of aging, this is a proposal which has been talked about for years. It has been estimated that both families and the government can potentially save half of the money that a nursing home would cost and keep seniors at home. With a prominent national figure such as Eliot Spitzer pushing this important issue, it may indeed gain traction in the State of New York - if not elsewhere in the country.

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The National Citizens’ Coalition for Nursing Home Reform (NCCNHR) is a consumer rights group interested in protecting the rights, safety and dignity of America’s long term care residents. Their goal is to achieve quality for residents of long term care facilities. They mean to accomplish this goal via:

1. Informed, empowered consumers;

2. Effective citizen groups and Ombudsman programs;

3. Promoting best practices in care delivery;

4. Public policy responsive to consumer needs; and

5. Enforcement of standards.

For more information about NCCNHR, contact them online or telephone them at 202-332-2275.

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A very significant portion of nursing home residents across the nation suffer from Alzheimer’s disease, which can take its toll on the caregivers. There are many local support groups who can help both caregivers and concerned family members deal with this disease. For more information, the National Information on Aging maintains a very helpful and informative website. Included in the website are a number of publications, news events and opportunities for volunteers to assist with research.

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