Nursing Homes: A Reality in 21st Century America
This serves as an introduction to several forth-coming blogs which will discuss current legal issues in nursing home negligence and abuse.
It is a fact that a significant percentage of the aged population in our society is living in nursing homes. This is not, in most cases, because their sons, daughters, or spouses (if surviving at this point) are unfeeling or callous, but generally because the aged family member is too ill, physically fragile, and/or suffering from dementia or Alzheimer’s to be cared for adequately at home. For example, an aged person’s children may still be working and therefore cannot be available during the day to tend to the aged person’s needs. Or the aged person’s spouse may have health problems of his or her own and be unable to provide the care the spouse requires.
Except in situations of considerable prosperity, an aged person, requiring 24/7 care or supervision, cannot either individually or with the financial assistance of family members, afford private 24/7 nursing care in his/her home or the home of his/her children. The decision to place an elderly family member in a nursing home is a difficult one, but generally made with the best of intentions. Family members anticipate that their vulnerable loved one will receive better care by a presumably caring professional staff than could possibly be provided to the elderly family member at home.
The need for nursing homes under these life circumstances is abundantly clear. Our society has responded by providing these facilities, which are operated under state licenses. Recognizing that the nursing home operators’ profit-making motivations may conflict with their care-giving responsibilities, the State of Florida, like many other states, has enacted a comprehensive statute (“Statute”) which sets forth the Nursing Home Residents’ Rights. The statute is frequently referred to as the Nursing Home Bill of Rights.
Many of the rights set forth in the Statute are concerned with prohibiting abuse – whether mental or physical- of the residents. Other enumerated rights are focused on preventing Nursing Home Neglect, which is more common and which is characterized by the failure of the nursing home staff to provide adequate care. This inadequate care generally stems from understaffing, lack of training, and lack of proper supervisory oversight.
This neglect may result in one or more unfortunate, and sometimes lethal results, the most frequent of which are the following:
1) Decubitis ulcers, more frequently known as “bed sores” or pressure sores
2) Dehydration
3) Malnourishment
4) Lack of oversight, resulting in a resident wandering from his/her room and frequently falling and sustaining broken bones, especially fractured hips. Recently, on December 25, 2008, an elderly nursing home resident wandered outside of the nursing home's grounds in Broward County, Florida. Sadly, the elderly gentleman drowned in a nearby lake.
5) Errors in medication leading to serious side effects and other repercussions if the wrong medication or dosage is given;
6) Infection where the resident’s hygiene is not properly maintained and/or the resident develops bed sores which are not immediately treated by proper medical intervention.
Nursing home abuse and neglect has become rife, especially in states with a large elder population such as Florida. Family members have awakened to the opportunities provided by the Statute which allows resident relatives to assert the rights of the resident by making complaints directly to the licensed operators, and if necessary, by seeking to enforce the resident’s rights through legal action.
It may seem that seeking and sometimes obtaining monetary damages for the results of nursing home neglect, such as bed sores or broken hips, will not undo the pain, suffering, or even the death of the resident victim. It is nonetheless plausible that successful legal actions may act as a brake against nursing home abuse and neglect because of their adverse effect on the operators’ profits. For example, the operator’s insurance may increase substantially, or in some cases, sub-standard nursing homes may cease operations, and hopefully be replaced by nursing homes with better staff oversight and better trained staff.
While the Statute does provide rights, which when breached, can be remedied- at least monetarily-through legal action, it must be emphasized that a fair financial remedy is not always achievable in reality. All too frequently, nursing homes, are under-insured. The neglect may certainly have occurred, but the nursing homes’ liquid assets or available insurance just may not be adequate to begin to compensate the injured aged resident for his/her pain or suffering.
If you believe that you or a close family member has been victimized through nursing home neglect or abuse and your own efforts to correct the situation have not succeeded, you should considering speaking with legal counsel to determine the feasibility of pursuing legal action under the facts of your specific situation.
Finally, in some cases, it would be advisable to seek stronger legislation imposing tougher performance standards on nursing homes and tougher minimum insurance requirements. One way to accomplish this objective would be for adversely affected residents and/or family members to complain to their state legislator or to lobbying groups which represent the interests of our senior citizens, such as AARP.
It is also suggested that family members be diligent in “studying” the condition of their loved one whenever they visit, and if possible, even drop in on surprise visits. Any concerns should be immediately conveyed to upper management. Observations should be documented by the family members. Where the family members of a nursing home resident do not live nearby, the family member should consider arranging for a “local” friend to make periodic visits and report any concerns immediately to the family member.
Remember that many elderly nursing home occupants, especially those suffering from dementia, senility, or Alzheimer’s, may well be incapable of articulating just how they are cared for or treated. They are among the most vulnerable of our citizens.
