Wednesday, April 11, 2012

Frozen to Death

In Trumbull County, Ohio an 84 year old resident was found frozen to death in the parking lot of the long term care nursing facility of which she was a resident. From the news accounts she left her room between 4 and 6 a.m.. She was discovered frozen to death at approximately 6:30 am. The facility has acknowledged that the alarm for their front door was not working at the time.

The question becomes, isn't it more prudent to spend $240.00 dollars a day ( $10.00 an hour for someone to watch the front door) until the alarm can be fixed, than to risk the lives of residents?

What value do these institutions place on the lives of the residents in whose hands we have placed our trust?

Wednesday, August 3, 2011

Lack of Trained Staff and Equipment May Be a Criminal Offense

Nursing Home Indicted In Patient’s Suicide

MONTROSE (AP) — An indictment blames a Southern California nursing home and its former administrator for the death of a suicidal patient.
Attorney General Kamala D. Harris said Monday that Verdugo Valley Skilled Nursing and Wellness Centre and former administrator Phyllis Paver face abuse and neglect charges in the death of Charles Morrill.
Harris says the 34-year-old Morrill was accepted into the facility despite its lack of equipment or staff trained to handle patients with mental illness.
Morrill, who had a long history of psychiatric illness, attempted suicide three times while there. He was successful the last time.
A call to the facility was not immediately returned.
If convicted, the facility could lose its license and federal funds. It’s not clear what kind of penalty Paver could face.

Thursday, July 21, 2011


          When someone enters a nursing home an assessment is made by the medical personnel of the physical, mental and medical status of the incoming resident. This assessment is mandated by law. A nursing home is required to:
conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which assessment—
(i) describes the resident’s capability to perform daily life functions and significant impairments in functional capacity;
(ii) is based on a uniform minimum data set specified by the Secretary under subsection (f)(6)(A) of this section;
(iii) uses an instrument which is specified by the State under subsection (e)(5) of this section; and
(iv) includes the identification of medical problems.
42 U.S.C. 1395i-3(b)(3)(A)
            This assessment leads to the creation of a plan of care. However, a resident’s needs are not frozen in time; they are constantly changing during their stay at a nursing home. Because of this, a dynamic plan of care is a necessity in providing appropriate and required care. While the law provides that reassessment of the plan of care is mandated:
(II) promptly after a significant change in the resident’s physical or mental condition; and
(III) in no case less often than once every 12 months.
42 U.S.C. 1395i-3(b)(3)(C)
this is not enough to meet the standard of care in all cases. The plan of care needs to be constantly evolving as it sets forth the interventions that will be utilized to protect a resident from harm. The recognition that harm may occur based upon interventions in the current plan is the trigger for modification.
            Take for example a resident who is recognized to be a fall risk. The plan of care may state that the resident is to be reminded to ask for assistance when attempting to transfer and not to attempt transfer alone. If then, it is seen that the resident attempts to transfer on his own to use the restroom and is not asking for assistance, the plan of care must change. It is apparent that the plan of care is not working to protect this resident. Dynamic change is required; maybe a change to toileting the resident every two hours, if that doesn’t work then possibly bed and chair alarms, or maybe more supervision. The point is that the resident’s needs are changing and the plan of care must change with them. It is that point in time when it can be recognized that an intervention is not effective that the plan must change. The standard of care is not met if the facility waits for the resident to fall to modify the plan of care.
            The need for a constantly evolving plan of care is not confined to fall intervention, it encompasses all of the needs of a resident, hydration, elopement risk, depression, skin integrity and nutrition.
            When I investigate a claim of injury or neglect at a nursing home, I look to see if there are signs that a plan of care did not change to meet the needs of a resident based upon the facility’s own charting. While the law mandates reassessment based upon a significant change in condition, the applicable standard of care requires that a facility recognize when their interventions are failing. It is then their obligation to modify their approach so that the needs of those who have been entrusted to their care are met before an injury occurs.

Thursday, July 14, 2011


            Dehydration is the most common fluid and electrolyte disorder of frail elders, both in long-term care settings and in the community. Data from the 1996 National Hospital Discharge Survey show that 208,000 patients 65 years of age and older were discharged from short-stay hospitals with a primary diagnosis of dehydration. (Vital and Health Statistics. Vital and Health Statistics from the Centers for Disease Control and Prevention/National Center for Health Statistics. Detailed Diagnoses and Procedures, National Hospital Discharge Survey 1991.)

            Dehydration is a condition when the body is losing more water than it is taking in. Dehydration is defined as the depletion of total body water (TBW) content due to pathologic fluid loss or decreased fluid intake and is associated with high mortality rates among the elderly population in nursing homes.( Sansevero, AC. Dehydration in the elderly: strategies for prevention and management. Nurse Practitioner. 1997;22 (4): 41-72). Elderly dehydration is especially common for a number of reasons: some medications, such as for high blood pressure or anti-depressants, are diuretic; some medications may cause patients to sweat more; a person’s sense of thirst becomes less acute as they age; frail seniors have a harder time getting up to get a drink when they’re thirsty, or they rely on caregivers who can’t sense that they need fluids; and as we age our bodies lose kidney function and are less able to conserve fluid (this is progressive from around the age of 50, but becomes more acute and noticeable over the age of 70). Illness, especially one that causes vomiting and/or diarrhea, also can cause elderly dehydration.

            There are various complications to the health of nursing home residents that are associated with dehydration they include: Kidney failure, a common occurrence, although if it is due to dehydration and is treated early, it is often reversible, (as dehydration progresses, the volume of fluid in the blood decreases, and blood pressure may fall, this can decrease blood flow to vital organs like the kidneys, and like any organ with a decreased blood flow; it has the potential to fail); Coma, decreased blood supply to the brain may cause confusion and has been documented to cause comas; Shock, when the fluid loss overwhelms the body's ability to compensate, blood flow and oxygen delivery to the body's vital organs become inadequate and cell and organ function can begin to fail; Electrolyte abnormalities, in dehydration, electrolyte abnormalities often occur since important chemicals (like sodium, potassium, and chloride) are lost from the body, this has been shown to cause muscle weakness and heart rhythm disturbances; and unfortunately all too often, Death.

                One may wonder if there are guidelines in place that apply to nursing homes, as in most cases serious complications and deaths associated with dehydration are preventable. There are guidelines and the failure to follow them is defined as neglect by federal law. According to the Nursing Home Reform Act of 1987, the lack of assistance with eating and drinking, which leads to malnutrition and dehydration, is listed under neglect (Neglect and Abuse. Consumer Information Sheet, National Citizen's Coalition for Nursing Home Reform web site 2000).

            There are also several statutes that establish guidelines for the detection and prevention of dehydration in the nursing home population. One of which is the Omnibus Budget Reconciliation Act (OBRA) which established dehydration/fluid maintenance triggers to alert staff of dehydration in long-term care residents and highlight the need to implement dehydration intervention. Unfortunately, even with these laws and regulations, dehydration is still attributed to the many deaths of nursing home residents.

            Medical studies have pointed to inadequate staffing and lack of professional supervision as factors contributing to dehydration in nursing homes. Kayser-Jones JSchell ESPorter CBarbaccia JCShaw H. in a 1999 study, published in the Journal of American Geriatric Society at J Am Geriatr Soc. 1999 Oct;47(10):1187-94, revealed that 39 out of 40 studied nursing home patients received inadequate amounts of fluids during each of the days that they were followed. They published the following results:

            The residents' mean fluid intake was inadequate; 39 of the 40 residents consumed less than 1500 mL/day. Using three established standards, we found that the fluid intake was inadequate for nearly all of the residents. ... Clinical (undiagnosed dysphagia, cognitive and functional impairment, lack of pain management), sociocultural (lack of social support, inability to speak English, and lack of attention to individual beverage preferences), and institutional factors (an inadequate number of knowledgeable staff and lack of supervision of certified nursing assistants by professional staff) contributed to low fluid intake. During the data collection, 25 of the 40 residents had illnesses/conditions that may have been related to dehydration.
            Their conclusions were also compelling, and their advice simple, more staff, more education, more time spent with each resident.
When staffing is inadequate and supervision is poor, residents with moderate to severe dysphagia, severe cognitive and functional impairment, aphasia or inability to speak English, and a lack of family or friends to assist them at mealtime are at great risk for dehydration. Adequate fluid intake can be achieved by simple interventions such as offering residents preferred liquids systematically and by having an adequate number of supervised staff help them to drink while properly positioned.
      What is even more striking is that, the staffing level in the nursing home in the above study was one nurse’s aide to every ten patients. Ohio’s minimum level is one nurse’s aide to no more than fifteen patients. In the above study the nurse’s aides were overwhelmed, staff tried to save time to be more efficient during their shift even if it was at the expense of quality care toward the elderly residents. One staff member even admitted to restricting fluids in order to reduce the urinary output of incontinent patients (and thus avoid changing wet beds). The study found that of those residents who received assistance, most were fed in 5 to 10 minutes while lying in bed on their sides, one patient, who had cognitive and functional impairment as a result of a stroke, ate her meals in a reclining position without assistance and this patient instead of drinking her fluids she dipped her fingers into her juice and licked them to avoid spills. With a patient to aide ratio 50% greater under Ohio law, a person can surmise that patient hydration needs suffer even more.

            The problem of dehydration is not only complicated by failures of adequate staffing and reporting, but also, by the failure of nursing home personnel to recognize signs and symptoms of dehydration.

            In another study the knowledge of the nursing staff was tested on the subject of signs and symptoms of dehydration by having them complete questionnaires that addressed hydration of the elderly. Only registered nurses were able to recognize even 50% of the signs and symptoms of dehydration.

            Education, appropriate staffing, and consistent monitoring of residents actual intake appear to be avenues that could greatly help in the prevention or early recognition of dehydration, allowing time for effective interventions without drastic health complications for the nursing home resident.

            In the mean time if dehydration has resulted in serious health complications for a resident in a nursing home, in all probability it constitutes legal neglect under both state and federal law.

Thursday, July 7, 2011


            Clients have often asked me how abuse or neglect can happen in an Ohio nursing home when there are nurses and aides who are supposed to be caring for their loved-one. One of the answers to this question, when neglect has occurred, is the actual staffing levels required by Ohio law.
            The law in Ohio provides that “each nursing home shall have staff sufficient in number on each shift to provide care and services to meet the needs of the residents in an appropriate and timely manner…” Unfortunately it goes on to say “… and to provide a minimum daily average of two and three-fourths hours of direct care and services per resident per day as follows:…” That’s right; a resident in a nursing home is only required to receive direct care services for 2 hours and 45 minutes a day. That’s 21 hours and 15 minutes, each and every day, without direct care. Knowing this, it becomes easier to see how neglect can occur.
            How much of these 2 hours and 45 minutes does the law require that a Registered Nurse provide care to your loved-one? This answer is extremely distressing, 12 minutes. Twelve minutes spread out over 24 hours, four minutes each shift, it is inconceivable that appropriate and meaningful care can be accomplished if a nursing home staffs it facilities to meet the state minimum standard. However in case after case, profit driven nursing homes are doing exactly this.
            Who provides the remainder of the time? Two hours must be provided by nurse’s aides. These are workers who have received approximately 75 hours of training in caring for your loved-one. In actuality then, your loved-one receives the majority of their care from someone who has had less training than someone who gives manicures. The remainder of the 33 minutes can be provided by, activities aides, occupational therapists, physical therapists, dietitians, and social service workers who provide direct care and services to the residents.
            Understanding this information, it becomes apparent that neglect, not only can occur in a nursing home that staffs at minimum state levels, it will occur.

Tuesday, July 5, 2011

Is an Autopsy Necessary to Pursue a Death Claim in a Nursing Home Case?

            I am often asked whether it is absolutely necessary to have an autopsy performed in order to pursue an investigation into a wrongful death claim arising from a suspicious death in a nursing home. The simple answer to this question is no, it not absolutely necessary, but it can be of significant help in determining whether abuse or neglect caused the death of a loved one.
            Often the doctor who lists the cause of death of a nursing home resident will list a chronic condition, such as congestive heart failure, as the cause of death unless there has been something extraordinary that he becomes aware of prior to issuing a death certificate. This path of least resistance makes it much more difficult to prove that the death was in fact caused by a lack of proper medical care. Without an autopsy to prove otherwise, this type of case produces a long uphill battle for the family of the loved-one who has died.  Studies reveal that nearly half of the listed causes of death on death certificates for older persons with chronic or multi-system disease are inaccurate. (Miles SH. Concealing accidental nursing home deaths. HEC Forum. 2002 Sep;14(3):224-34). The autopsy rate of nursing home residents is only 0.8 percent.(Katz PR, Seidel G. Nursing home autopsies. Survey of physician attitudes and practice patterns. Arch Pathol Lab Med. 1990 Feb;114(2):145-7). In reality, if an autopsy is not requested, the actual cause of death may never be known.
            If there is any indication at all, that a nursing home resident may have died as the result of neglect or abuse, an autopsy should be requested. If the doctor or nurse says there is no need to notify the medical examiner, or if the medical examiner declines to do an autopsy, the next of kin should still consider having an autopsy done. Autopsies help answer questions about what really happened.
            There are approximately 7000 skilled nursing facilities in the United States and about 13,000 other facilities for long-term care. The deaths of older people now occur much more frequently in nursing homes; studies have estimated that 33% of all elder deaths occur in these settings. (Ferrell B, Coyle N. Textbook of Palliative Nursing. Oxford University Press US; 2006. p. 646). If your loved-one had any of the following conditions before they died, there are questions to be answered.
Bed Sores
            Over 1 million people develop bedsores in U.S. hospitals every year. Bedsores are preventable with proper nursing care. Approximately 50 percent of those affected are in a vulnerable age group of over 70. In the elderly bedsores carry a four-fold increase in the rate of death.
Malnutrition/ Dehydration
            A report from the Coalition for Nursing Home Reform states that at least one-third of the nation’s 1.6 million nursing home residents may suffer from malnutrition and dehydration, which hastens their death. The report calls for adequate nursing staff to help feed patients who aren’t able to manage a food tray by themselves. This Coalition report states that malnourished residents, compared with well-nourished hospitalized nursing home residents, have a five-fold increase in mortality when they are admitted to hospital. This equates to over 100,000 premature deaths in nursing homes from malnutrition and dehydration in our nation’s nursing homes every year.
Recent Falls, or Infections.
            As discussed earlier, since many nursing home patients suffer from chronic debilitating conditions, their assumed cause of death is often unquestioned by physicians. Studies within the medical field itself show that as many as 50 percent of deaths due to restraints, falls, suicide, homicide, and choking in nursing homes may be covered up. (Miles SH. Concealing accidental nursing home deaths. HEC Forum. 2002 Sep;14(3):224-34; Corey TS, Weakley-Jones B, Nichols GR. Unnatural deaths in nursing home patients. J Forensic Sci. 1992 Jan. 37(1):222-7). As I also suggested earlier, many nursing home deaths are attributed, instead, to heart disease. Researchers have found that heart disease may be over-represented in the general population as a cause of death on death certificates by 7.9 percent to 24.3 percent. In the elderly the over-reporting of heart disease as a cause of death is as much as 200 percent. (Lloyd-Jones DM, Martin DO, Larson MG, Levy D. Accuracy of death certificates for coding coronary heart disease as the cause of death. Ann Intern Med. 1998 Dec 15;129(12):1020-6).
            As was said not by lawyers, but by practioners in the field of medicine, “The autopsy is the ultimate “peer review.” Yet the autopsy has nearly disappeared from hospitals in the United States and around the world.”…Factors that limit performance of autopsy…Medico-legal fears: Understandable concern about lawsuits is a huge deterrent to autopsy in spite of the obvious potential for educational, clinical, and research gains. (Geriatrics. 2008 December; 63(12): 14–18, The autopsy and the elderly patient in the hospital and the nursing home: Enhancing the quality of life, Leslie S. Libow, MD and Richard R. Neufeld, MD).
            Simply put, if you have any question regarding the cause of your loved-one’s death while they were a resident in a nursing home, you should request an autopsy. Knowing the answer to that question will provide not only help if you are considering a cause of action against the nursing home, it will also provide peace of mind.

Friday, July 1, 2011

Video of Patient Being Abused

Channel 3 News in Cleveland, Ohio has a video showing a patient in a nursing home owned by Metro Hospital being physically abused. The video was obtained by a family member who placed a hidden camera in the room.
When the nursing home investigated reports of abuse they said they found nothing wrong, it was only when they were confronted with the video that they finally admitted that this poor woman was being abused. Here is the link, the video is worth watching.