legally speaking
Time to Stand Up Against Nursing Home Abuse
By A.L. DeWitt, JD, RRT
We’ll call the woman Frieda. She was 72 years old and had either senile dementia or Alzheimer’s disease, depending on whom you chose to believe. She was prone to memory lapses and had frequent bouts of depression. That’s why she was in the nursing home. Although her family visited her frequently, she didn’t remember their visits. She would cry, wander around and find herself in other patients’ rooms.
We’ll call the man Earl. He was 78 and suffered from senile dementia, but he tended toward violent behavior. He would strike out at patients and staff, roam the halls and frequently find his way into the rooms of women where he frequently tried to engage in sexual behavior.
One night, Earl went into Frieda’s room and raped her. A nurse’s aide physically pulled him off and put him back in his own room. Incredibly, no one called the police or the administrator. The charge nurse contacted the director of nursing that night, and the director said she would look into the matter the next day. The next morning, when the administrator came in, he notified the police and took actions to protect the patient the nursing staff should have taken.
Shortly thereafter, his boss, the president of the nursing home chain, arrived and tried to force the police to leave, doing everything possible to squelch the incident. The police, however, told him to leave or face arrest.
Several days later, the administrator and the nurse’s aide were fired. The story was one of evasion, denial and delay…until the fired workers contacted a lawyer.
Over the past five years, I have handled pulmonary medical and pediatric negligence cases and product liability claims, including defective PCA pumps. The number of ways a person can be harmed when they seek health care is pretty extensive.
PERSONAL CONCERNS
However, this year, I have refocused my practice to work exclusively on nursing home litigation. Nursing home care should be a matter of great personal concern for every therapist, particularly for those who used to work in nursing homes, because the quality of care since PPS has drastically changed, and not for the better. Therapists represented a significant safety valve in the long-term care industry, and once they were removed from the scene, their former patients began returning to hospitals sicker and in various states of physical injury.
Over the past year, I have seen cases where nursing home residents were starved to death, died from dehydration, or acquired parasites from unclean food. In some instances, residents have been abruptly taken off medication and forced to see only physicians approved by the nursing home. The level of care at some nursing homes has degenerated so far and so fast that immediate action is necessary to safeguard residents. It is time to write to your elected representatives and convince them that nursing home reform should be a top priority!
Therapists can also play an important role in counseling family members about nursing homes. Finding the right nursing home is every bit as important as finding the right doctor. Interested family members can find out what their rights are by looking at 42 CFR § 483.10 (available at www.nursing-home-abuse.net). Family members can also compare nursing homes by going to the HCFA website and choosing Nursing Home Compare to evaluate the care rendered by nursing homes in their zip code. (http://www.medicare.gov/nursing/home.asp).
Therapists can also point out the facts. For example, nursing homes must permit 24 hour a day, seven day a week visitation. In spite of this federal regulation, nursing homes have called police to have family members escorted from the premises when they visited after “visiting hours.” Unless family members know they can get court orders to protect this valuable right, it can be taken from them without warning.
Nursing homes are likewise required to provide 24-hour-a-day protection and are required to provide sufficient staff to care for patients. In spite of this, some homes restrict staffing to “retain profitability.” If family members know there are federal and state guidelines in place, they are likely to be better consumers and more likely to receive good care in the nursing home. In nursing homes, the aphorism about squeaky wheels getting the oil rings true.
Finally, therapists can play an active role in stopping a silent epidemic of elder abuse by reporting all suspicious injuries and accidents to authorities. Unexplained bruises, lacerations, or similar injuries that do not correlate to their clinical condition should be investigated. Although all nursing homes are required to report suspicious injuries, too frequently they turn a blind eye to abuse.
Reports should be made to the local Division of Aging (or similar protective agency). Toll-free phone calls and anonymous reporting are available, but taking the step to document the abuse is the first step in stopping it. If patients report they have been assaulted, that information should be reported immediately to the police. While criminal charges are rare when other patients are involved, frequently patients are blamed for rapes and criminal assaults committed directly by staff members.
A CASE OF ASSAULT
Recently, for example, our firm became involved in a case where an elderly patient was assaulted in a nursing home. The suspect, a staff member, was later arrested for injuring an 11-month-old infant. Only at that point did authorities discover the employee had fled from another jurisdiction on a serious felony involving firearms. What should have been caught on a routine background check had been missed.
Nursing home abuse is everyone’s problem. Take a stand. Report abuse. If you have doubts about what to report, call me. *
A.L. DeWitt is affiliated with the law firm of Bartimus, Frickleton and Presley, Jefferson City, Mo. He can be reached at (573) 659-4454 or [email protected]. This column provides an overview of legal issues and is not a substitute for the advice of qualified legal counsel.
