Nursing Home Smoking Rules Often Lax

Vol. 20 •Issue 3 • Page 5
Legally Speaking

Nursing Home Smoking Rules Often Lax

Most hospitals now have non-smoking policies in place in their facilities, eliminating the problem hospitals formerly had with respect to smoking. Patients, staff and physicians alike are not allowed to smoke in the hospital. The “health orientation” has been taken further in many locations where the entire hospital campus has been designated as tobacco-free.

Amazingly, employees often react negatively to this rule, believing what they do on their breaks should not matter to their employer. But federal and state laws do allow employers to set work rules; and if the rule is no smoking, then an employee can be terminated for violating the rule.

Sometimes we forget that even five years ago, some hospitals still had smoking rooms; and patients were allowed, in spite of the copious quantities of oxygen and flammable materials, to smoke there. Therapists routinely affixed “no smoking” signs to doors to protect patients from the errant smoker wandering into their rooms.

We all knew oxygen itself was not flammable and the risk of fire was somewhat of a scare tactic designed to get patients to put down tobacco for good. No one ever caught fire in a hospital; that kind of stuff never happens.

But sadly it can in nursing homes. In Escondido, Calif., a 67-year-old male nursing home patient on oxygen was burned and ultimately died from his injuries when, according to published accounts, he simply “burst into flames.” The patient, on oxygen, was sitting in a wheelchair just outside the front door of a nursing care center when he was supposedly suddenly engulfed in flames.

Incredibly, someone had given the patient smoking materials. Nursing home employees put out the fire with a fire extinguisher and rushed him to a hospital. Inhalation burns, however, proved fatal.

“We know he was smoking at the time,” said Carol Rea, spokeswoman for the Escondido Fire Department in suburban San Diego. “His oxygen was on while he was smoking.”

The state department that investigates nursing home care reportedly told a newspaper reporter, “The state doesn’t regulate smoking,” said Patti Roberts, an agency spokeswoman.

But the state does regulate dispensing of drugs, and oxygen is a drug. Nursing homes also have to comply with state and federal regulations that ensure patients are cared for properly. In Missouri, nursing home residents are entitled to 24-hour-a-day protective oversight and supervision.

In March, the nursing home was fined $100,000 for leaving the man alone after the state Department of Health Services, which licenses nursing homes, investigated the incident.

It is my fervent hope California therapists use this tragedy to their advantage because legislators often fail to appreciate the value therapists bring to the health care setting. This kind of tragedy is avoided in hospitals because therapists ensure that patients who receive oxygen are supervised.

More importantly, patients should receive oxygen only when they have hypoxemic episodes and only in amounts necessary to treat their hypoxemia. These safeguards may have been lacking in Escondido.

Every therapist should use this event as a reason to write to their elected officials to make them aware of the unblemished record of safety therapists have in administering oxygen and remind them that cuts that affect Medicaid and Medicare ultimately reduce the safety net that protects patients in all settings.

No patient should endure horrific events. No nursing home patient should be given both oxygen and smoking materials. Whether we like it or not, we should remember we are all only a few dozen years or so from being nursing home residents ourselves.

A.L. DeWitt is affiliated with the law firm of Bartimus, Frickleton, Robertson and Obetz, Jefferson City, Mo. This column provides an overview of legal issues and is not a substitute for the advice of qualified legal counsel.