Articles Posted in Nursing Home Articles

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Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversight, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

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In a recent case, an Illinois appellate court recently decided that a nursing home was required to turn over certain documents in a medical negligence lawsuit after a resident fell at the nursing home. The resident in the case was an 88-year-old woman who was allegedly injured in a fall while she was a resident of the home. The plaintiff, who was the patient’s guardian, filed a claim on behalf on the patient’s behalf and was trying to get a copy of an internal report from May 2012 after the patient’s fall at the home.

The nursing home argued that the internal documents concerning the patient’s fall were protected under the Illinois Medical Studies Act and under the Long-Term Care Peer Review Act and Quality Assessment and Assurance Protection Act.

The Quality Assurance Act and the Medical Studies Act

The Quality Assurance Act protects proceedings and communications involving a peer review or a quality-assessment-and-assurance committee at long-term care facilities. The Medical Studies Act is a similar act that also protects peer-review proceedings and communications but applies to medical facilities. The laws protect certain information in order to encourage internal studies to improve care for patients.

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Nursing home abuse often goes unreported due to the patient’s mental health and vulnerability. It can be difficult to detect abuse or neglect because family members are not present 24 hours a day. It also can be difficult to prove allegations of abuse because the nursing home resident may be unable to testify due to mental health issues such as dementia, or because the resident is no longer alive. That being said, there are laws that protect the rights of residents in order to protect them from cases of abuse or neglect, and anyone suspecting a loved one is being abused in an Illinois nursing home should consult with a dedicated personal injury attorney.

Protections for Nursing Home Residents

There are different statutes and regulations that protect the rights of senior citizens and nursing home residents. A central statute in Illinois is the Nursing Home Care Act (NHCA). The Act establishes a resident’s “bill of rights” and creates a system to resolve claims under the Act. Under the NHCA, nursing homes are liable to residents for any intentional or negligent act or omission that causes an injury to a resident. Neglect is defined as a facility’s failure to provide adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living necessary to avoid physical harm, mental anguish, or mental illness for a resident.

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On February 22 of this year, the United States Supreme Court will hear arguments in a case that may greatly affect nursing home care in this country. According to one news source, the case considers the legality of arbitration agreements signed by representatives of nursing home residents.

In that case, two nursing home residents died in nursing homes. Their families filed lawsuits against the nursing homes after their deaths, but the nursing homes tried to force the families into arbitration under signed arbitration agreements. The Kentucky Supreme Court previously ruled that nursing home residents had not explicitly allowed their representatives to enter into arbitration agreements, and these agreements were not binding as a result.

The nursing homes in the case argue that states cannot place more of a burden on the creation of arbitration agreements than they would on creating any other contract. Long-term care providers contend the decision “poses a substantial threat to the long-term care industry at a time when demographic trends dictate that provision of long-term care could become increasingly important.” They say the Federal Arbitration Act and federal policy that favors arbitration preempt state laws like Kentucky’s. They argue the FAA was intended to make arbitration agreements equally as enforceable as any other contract, unless there are grounds that invalidate them just as in any other contract.

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In a recent case in front of a state appellate court, a woman died while in the care of a nursing home, and the woman’s daughter filed a wrongful death claim against the nursing home, alleging medical malpractice. In response, the nursing home filed a motion for summary judgment to have the case dismissed because the woman failed to designate an expert witness.

The woman then designated two expert witnesses. Subsequently, the court granted summary judgment because although the woman designated the experts, she failed to produce sworn expert testimony. The woman then filed sworn expert testimony by filing affidavits from the expert witnesses and requested a reconsideration of the judgment. The court denied the reconsideration motion. Under that state’s rules, sworn expert testimony is required in medical malpractice cases, and it is necessary to survive summary judgment.

The woman appealed and argued that the dismissal of the case was too harsh a sanction for a “discovery violation.” However, the court stated that the court did not impose sanctions because of her failure to follow discovery rules. Instead, the court dismissed the case because of a motion for summary judgment filed by the defendant, and she had failed to provide sufficient evidence to survive a motion for summary judgment. Accordingly, the state’s supreme court agreed with the decision and affirmed the dismissal.

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Anyone who has a loved one in a nursing home dreads a phone call from the nursing home. Residents are usually elderly and often sick, and injuries and deaths are common among nursing home residents. However, one risk may be an unexpected one: the safety risk of bed rails.

Bed rails are used in nursing homes to prevent residents from falling out of bed, to help them get in and out of bed more easily, and to help them reposition themselves more easily. Yet many people are unaware of the risks. The risks include scrapes and bruising from hitting the hard rails, more serious injuries from falls if a resident tries to climb over the rails, and strangling or suffocation if a resident becomes caught between the rails and the mattress.

The U.S. Food and Drug Administration reports that from 1985 to 2009, there were 803 incidents reported of patients caught, trapped, strangled, or entangled in beds with rails. About 480 of those patients died as a result. The Food and Drug Administration recommends only using bed rails when necessary and engaging in ongoing evaluation and monitoring to optimize safety.

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Businesses are smart and often will do anything to avoid litigation. Many businesses now include an arbitration clause in their contracts—requiring claims to be resolved out of court. However, in a recent case, a state’s supreme court found that even though a contract included an arbitration clause, it would not be enforced because the business waived its right to arbitration.

A woman placed her mother in a nursing home. When she enrolled her mother, she signed an arbitration agreement with the home. Later, she requested access to her mother’s medical records. The nursing home refused, citing privacy laws. The two parties continued the dispute in court. Two years later, her mother passed away.

After her mother’s death, the woman filed a notice of intention to file a wrongful death action against the nursing home. The nursing home asserted arbitration as a defense but did not require that the case be moved to arbitration at that time. Instead, it continued with the case in court, including appearing in court several times and responding to discovery. The plaintiff responded that the home had waived its right to arbitration because it had never requested arbitration during her case requesting her mother’s records. Soon afterward, the home argued that the case had to be moved to arbitration. The plaintiff argued that the home waived its right to arbitration by participating in discovery and appearing multiple times in court.

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Normally, the only people liable for an abused elder’s injuries are those who engaged in the abuse or were responsible for his or her care. However, a recent case found that even those who were not responsible for the patient’s care but failed to report suspected abuse could still be held liable.

In 2009, an elderly woman died in an adult family home from morphine intoxication. Her death was ruled a homicide, and her estate brought a claim against several people who took part in taking care of her. In addition, they sued two nurses who were not involved in her care but failed to report the suspected abuse.

Evidently, two of the home’s nurses were alleged to have observed signs of abuse and physical assault, which should have been reported to the Department of Social and Health Services and to the police. One of the nurses heard a thud in the patient’s room and saw the patient lying on the floor. She was told by the patient’s caregiver that she “falls a lot” and that she would call the home’s owner. The other nurse was told by another person that the patient’s caregiver was giving her morphine, which she had not been prescribed.

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According to news reports, a lawsuit has been filed against a nursing home in Joliet relating to the death of a woman who resided at the nursing home in 2013. The lawsuit was filed by the administrator of the deceased’s estate. When a person dies, an administrator is charged with determining the assets of the deceased and distributing those assets in accordance with his or her wishes. The lawsuit was filed in Cook County Circuit Court.

< The lawsuit alleges that the nursing home did not follow medical orders relating to the woman’s care, and this failure was a cause of her death. According to the lawsuit, the woman’s treating doctor ordered that she be turned every two hours while at the nursing home to avoid bed sores. The doctor also ordered that a specific cream be used for the same purpose. However, the lawsuit states that there are no notes from the nursing home indicating that the deceased was ever turned or that the cream was used on her skin. Records from the nursing home indicate that the woman had two open sores on her skin, but there is no indication in the records that the sores were ever treated while she was a resident at the nursing home. Continue reading →

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