Florida Injury Lawyers Blog

As a Florida law firm involved in nursing home negligence and abuse litigation, we are well-acquainted with the acts and omissions on the part of nursing homes which often result in serious harm to vulnerable nursing home residents. Once in a while we, however, can still be astounded by the actions of nursing home administrators and staff members, including doctors, which are so egregious in nature that they rise to the level of criminal conduct.

Take, for example, the recent matter involving nursing home residents at the Kern Valley Nursing Home in California. Various residents had supposedly complained to the nursing home director about certain matters. As reprisal, she chemically restrained them with powerful anti-psychotic drugs, there being no showing that these residents were psychotic. The drugs’ effects were so severe that three (3) of the residents died. The director, an administrator, and staff physician have been charged with criminal violations by the State of California.

Certainly the care of nursing home residents is demanding because the residents are more likely than not suffering from some stage of Alzheimer’s and/or dementia and often physical problems as well. In understanding just why the "Kern's" trio's conduct was criminal in nature, one needs to understand that FDA has approved certain drugs for treating Alzheimer’s, but has never approved any drugs whatsoever specifically for the treatment of dementia, generally associated with confusion and anxiety. Therefore, the prescribers of these anti-psychotic drugs for dementia are knowingly administering these drugs under a practice known as “off label” usage.

Furthermore, the FDA issued warnings in June 2008 to medical providers that anti-psychotic drugs used to treat dementia in the elderly are associated with a high risk of death. Therefore those healthcare providers who violate the warnings of the FDA and use anti-psychotic drugs on the elderly cannot claim ignorance as to the potentially dangerous consequences of their actions.

One of the anti-psychotic drugs on the FDA's June 2008 "dangerous drug" warning list is Seroquel, a drug manufactured and marketed by AstraZeneca. Seroquel has recently received considerable negative press because of AstraZenaca's suspect marketing activities. Seroquel has been approved by the FDA only for the treatment of short term bipolar disorder and schizophrenia. Despite that “limited” approval, AstraZeneca had engaged in a calculated effort to “expand” the deliverance of this drug to the elderly despite the known, potentially life-threatening risk factors. To accomplish this suspect objective, the drug was marketed to geriatric physicians and primary care physicians who treat elderly patients, not psychiatrists. Psychiatrists are the doctors who generally diagnose and treat schizophenia and bipolar disorder, not primary care physicians.

Interestingly, a 2005 British Medical Journal report showed that Seroquel actually made cognitive functioning worse in elderly patients with dementia! So not only was the drug ineffective, but it also can cause harm to the patient! Not surprisingly, class action civil lawsuits have been filed against AstraZeneca on behalf of the victims harmed of the company’s questionable marketing practices

Why would drug manufacturers such as AstraZeneca “push” the usage of drugs to unsuspecting elderly patients through cooperative physicians? Think about it. Seroquel and other antipsychotic drugs have a relatively small market compared to the burgeoning “elder” market. Indeed a member of our law firm had personal experience with a situation where a physician prescribed Seroquel to an elderly family member, who was not in a nursing home at time, and after the FDA’s warning to healthcare providers in 2008. The elderly family member began experiencing excessive thirst and other “new” symptoms associated with diabetes, one of Seroquel’s well-known risk factors. The elderly person had none of the risk factors associated with diabetes and in fact had hever had a "bad" glucose test reading in her life. After several conversations with the doctor, the elderly person’s caregiver gradually “weaned” the patient off of Seroquel and changed doctors. Her entire medication schedule has been changed, and considering her age, she is doing remarkably well.

And who pays for the prescriptions for the elderly? Medicare and Medicaid. Indeed the U.S. Department of Justice filed an action against AstraZeneca for among other things, Medicare and Medicaid fraud in 2009. On April 27, 2010, AstraZeneca agreed to settle the case for $ 520 million.

Continue reading "Chemical Restraints as an Easily Hidden Form of Egregious Nursing Home Abuse: A Problem that Is Further Magnified by the Unethical Marketing Practices of Anti-Psychotic Drug Manufacturers Such as Astra Zeneca. " »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Assisted Living Facilities - ALFs , Florida Nursing Home Bill of Rights , Nursing Home Abuse , Nursing Home Negligence , chemical restraints

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We previously wrote a blog concerning what has become a common practice of nursing home owners: the inclusion of arbitration provisions in nursing home admission documents. Except in very limited circumstances, Florida courts have routinely found that such arbitration provisions are legally valid. See Manocare Health Service, Inc. v. Stiehl, 22 So. 3d 96, 104, n.7 (Fla. 2d 2009). This current blog on such arbitration agreements is divided into two parts. Part I provides a discussion of the validity of nursing home arbitration agreements signed by individuals acting under a durable power of attorney. Part II discusses the legislative efforts which are being made to make nursing home arbitration agreements illegal.

Part I. The Validity of Nursing Home Arbitration Agreements Signed Under the Authority of a Durable Power of Attorney

Many times nursing home admission documents are signed by a family member acting as the resident’s durable power of attorney and not by the actual resident. The grant of powers under a durable power of attorney is known as an advanced directive. To be valid, a grant of durable power of attorney requires the execution of a formal document which specifies the powers being granted in accordance with the formalities specified by Florida Statute 709.06. A durable power of attorney is one which remains effective should the grantor become incapacitated in the future.

The following issue has arisen in nursing home negligence and abuse cases: whether nursing home admission documents requiring that claims arising under the admissions agreement be arbitrated are valid when the admissions agreement was signed by a person acting under a durable power of attorney. That is, does an individual acting under a durable power of attorney (DPOA) have the authority to consent to arbitrate claims arising from the resident’s nursing home care?

According to Florida courts, the answer depends upon the scope of the authority granted under the durable power of attorney document. In the Estate of Smith v. Southland Suites of Ormond Beach, LLC, et al., So. 3d (Fla. 5th DCA 2010), the decedent’s nursing home admission contract had been signed by her daughter acting under a durable power of attorney. The mother died while a resident at the nursing home, and her estate sued the nursing home for wrongful death. The estate argued that the daughter’s durable power of attorney did not authorize her to consent to arbitrate claims arising from her mother’s nursing home care. Hence, the action for wrongful death could be brought in a court of law.

The Smith Court noted that the DPOA did not specifically state that the daughter was being granted the right to enter into arbitration agreements on behalf of her mother. Nevertheless the Smith Court went on to state that the DPOA at issue did provide the daughter with broad authority to effectuate her mother’s legal rights and that “[t]he language of the DPOA is clearly broad enough to encompass arbitration and to authorize [the mother’s] daughter to enter a binding agreement on her mother’s behalf.” The Smith Court based its opinion on the following provision in the DPOA signed by the daughter:

“generally to do and perform all matters and things, transact all business, execute, and acknowledge all contracts, whether involving real property or not, orders, deeds, writings, assurances, and instruments, which may be requisite or proper to effectuate any matter or thing appertaining to or belonging to me, and generally to act for me in all matters affecting my business or property . . .”

In reaching its conclusion that the DPOA authorized the daughter to enter into a binding arbitration agreement, even though the DPOA did not specifically “allow” such an agreement, the Smith Court cited Florida Statute 709.08(6) which provides that “[u]less otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including . . . all other contractual or statutory rights or elections.” The Smith Court basically concluded that the DPOA granted the daughter the right to enter into all contracts on behalf of her mother without limitation as to the nature and type of contract and/or the provisions within the contract.

Other Florida appeals courts have reached the same conclusion when the DPOA at issue granted broad powers. See, for example, Jaylene, Inc. v. Steur ex rel. Paradise, 22 So. 3d 711 (Fla. 2d DCA 2009) and Five Points Healthcare, Ltd. v. Mallory, 998 So. 2d 1180 (Fla. 1st DCA 2008). But see our previous blog on arbitration agreements for examples of arbitration agreements which were deemed void by Florida courts.

The premise underlying the Smith Court’s holding is that a nursing home admission agreement, as a contract, constitutes an interest in property. As consideration for the acceptance into the nursing home, the resident or his/her DPOA, whichever the case may be, is agreeing to both: (a) pay for the resident’s care; and (b) also give up the right to pursue legal action in a court of law for injuries sustained as the result of nursing home negligence and abuse at the facility which is being paid to provide proper care. Seems a little one-sided, doesn’t it, especially when one considers why nursing home arbitration agreements are so popular these days: because awards of damages in arbitration proceedings for nursing home negligence will generally be substantially less relative to awards of damages by juries.

Continue reading "Current Topics in Nursing Home Arbitration Agreements" »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Bedsores , Nursing Home Abuse , Nursing Home Negligence

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As is well known, Florida has a large population of individuals over the age of sixty-five (65). Many of these individuals are, or will eventually become, residents of a nursing home or an assisted living facility (ALF). Moreover, the number of individuals in nursing homes/ALFs throughout the country is projected to increase dramatically over the next two to three decades due to the aging baby boomer population. Although most individuals adamantly state that they never “want to live in a nursing home facility,” the fact remains that many elderly individuals will, at some point in their lives, be admitted to a nursing home facility. Such an admission may be for short term stay, for example, where the individual is admitted for rehabilitation purposes after a hip replacement surgery. Other stays will be for the long term, and many an elderly person may in fact live out his/her life at a nursing home facility. Florida nursing homes are governed by the Statute entitled Nursing Homes and Related Healthcare Facilities (Florida Statute 400).

Assisted Living Facilities (ALFs) are an alternative to nursing homes and in many cases may be a suitable alternative to nursing home confinement where the resident is not in need of skilled nursing care. As in the case of Florida nursing homes, Florida ALFs must go through a licensing process and be approved by the State of Florida. It must be emphasized that ALFs, in contrast to nursing home facilities, do not provide on-site nursing care. ALFs are generally allowed only to administer doctor-prescribed medications to the resident, which are ideally dispensed by the pharmacy in unit dose packs. Moreover, ALFs must not accept or keep as residents any individual who has physical or mental health issues which require skilled medical treatment or which would pose either a danger to the individual or other residents of the nursing home facility. Assisted Living Facilities are governed by Florida Statute 429.

Elderly individuals confined to a nursing home are ripe candidates for negligent care and abuse due to their vulnerability, whether physical (e.g., frailness); mental (e.g., dementia or Alzheimer’s), or a combination of the two. The Florida legislature has made it very clear that such residents are entitled to certain rights and privileges through a law commonly known as the Nursing Home Resident Bill of Rights (Florida Statute Chapter 400 s.022). Every Florida nursing home resident resident or his /her legal representative should be provided with a copy of the “Bill of Rights” at the time of admission. In brief, residents’ rights, under Florida Statute 400.022, include the following:

1. The right to civil and religious freedom.
2. The right to private and uncensored communication.
3. The right to have reasonable access to the resident by an entity or individual that provides health, social, legal or other services to residents of nursing homes.
4. The right of a resident to present grievances, i.e., providing a forum where grievances can be presented.
5. The right to organize and participate in resident groups.
6. The right to participate in social, religious, and community activities.
7. The right to examine the results of the most recent federal or state inspection of the facility.
8. The right to manage his or her own financial affairs.
9. The right to be fully informed at the time of admission and throughout of services available in the facility and the related charges for such services.
10. The right to be adequately informed of his or her medical condition and proposed treatment, including the right to refuse medication and treatment.
11. The right to refuse medication or treatment and to be informed of the consequences.
12. The right to receive, in a nursing home, adequate and appropriate healthcare and protective and support services, including social, mental, recreational, therapeutic and rehabilitative services consistent with the resident’s care plan and with established and recognized practice standards.
13. The right to privacy and treatment and in caring for the resident’s personal needs, including the right to confidentiality of their medical records.
14. The right to be treated courteously, fairly, and with the fullest measure of dignity.
15. The right to be free from mental and physical abuse, corporal punishment, extended but involuntary seclusion and to be free from physical and chemical restraints, except those restraints authorized by a physician for a specified and limited period of time or as necessitated by emergency.
16. The right to be transferred or discharged only for medical reasons or for the welfare of other residents.
17. The right to freedom of choice in selecting a personal physician.
18. The right to retain and use personal clothing and possessions.
19. The right to have copies of the facility’s rules and regulations.
20. The right to receive notice before a resident’s room is changed.
21. The right to be informed of the bed reservation policy for hospitalization.
22. For recipients of Medicaid or Medicare, the right to challenge the decision by the facility to discharge or transfer.

Continue reading "Florida’s Nursing Home Residents’ Bill of Rights and the Right to Sue " »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Assisted Living Facilities - ALFs , Bedsores , Nursing Home Abuse , Nursing Home Negligence

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We have written numerous blogs concerning the development of decubitis ulcers, commonly known as bedsores, due to the negligent treatment of the nursing home resident or hospital patient by staff members. One blog suggested using a quality-control approach to reducing the possibility of pressure ulcers. In this blog, we will revisit the concept of objective quality care approaches as a valid means of reducing: 1) the incidence of bedsores in the first place and/or 2) reducing the possibility of developing particularly serious Stage III (associated with open sores) and Stage IV (associated with craters or holes) bedsores.

This blog is intended to emphasize that: 1) the causes of bedsore development are known; 2) the risk factors for developing bedsores are known; and 3) steps/procedures which will help reduce the development of bedsores or at the very lease allow for early “treatment” intervention are well known. The above prevention tactics are nothing more than common-sense procedures that every nursing home and hospital can implement via specific quality care programs which are actually followed. That this blog contains references to Dr. Deming is due to the fact that one of the authors, prior to attending law school, was involved in product development in the medical device industry for an international medical device manufacturing company where product development was carried out through product development teams consisting of members ranging from R&D to regulatory affairs. The teams’ responsibilities included the establishment of objective quality assurance indicators. As discussed below, the authors believe that Dr. Deming’s principles are applicable to hospital and nursing home settings for reducing the development of bedsores.

As the name suggests, pressure sores result when the weight of the person’s body presses against a firm surface such as a bed mattress or a chair. Or put another way, the bed sores develop due to the pressure exerted by the bed or chair on the person’s body. In understanding just how such pressure cause bedsores, remember that the skin contains hundreds of blood vessels. Bedsore occur when the pressure cuts off the skin’s blood supply to the "pressure-contact" area. This area of damaged skin will become more susceptible to pressure-induced damage if steps are not taken to relieve/reduce pressure on the now-compromised skin. (Reference #2)

It should not be surprising that the elderly, who are often frail due to poor bone and skin integrity, are particularly susceptible to pressure sores because of their lower tissue tolerance for pressure. Old age is thus a “no brainer” risk factor for developing bedsores. Yet, many other well-known risk factors are associated with the development of pressure sores. Obviously the greater the number of risk factors specific to the person, the greater the likelihood that the person will develop bedsores. Besides old age, the following factors are known to increase the risk for developing pressure sores:

• Being bedridden
• Spending considerable time in a wheelchair
• Diabetes or vascular disease that prevents areas of the body from receiving proper blood flow
• Spinal cord injury (paralysis), brain injury, or other physical condition which prevents the person from moving parts of his/her body without assistance.
• Malnourishment
• Mental disability such as Alzheimer’s disease or dementia which may prevent the patient from moving parts of his/her body without assistance not necessarily because they are unable to do so, but because they are not aware that then need to do so
• Urinary incontinence or bowel incontinence (Reference #1).

Many of the listed risk factors are typically associated with old age; therefore most elderly persons have multiple risk factors ranging from confinement to bed and wheelchairs to incontinence, mental disability, and/or malnutrition. Upon their admission to a nursing home or hospital, elderly persons should thus undergo a formal risk factor assessment to determine their risk of developing bedsores. They should then be monitored carefully for the onset of bedsores so that treatment can be timely rendered while the bedsore is still at a readily treatable stage.

Unfortunately, failure of nursing home staff members and administrators to actively take measures to minimize the onset of bedsores and/or initiate prompt medical intervention can result in dire consequences for the “bedsore” patient, especially where Stage III and Stage IV bedsores are at issue. Obviously, nursing home patients confined to their beds should be turned frequently to “spread out” the pressure from the hard surface across a large area of the person’s body. The medical literature suggests that turning should occur every two hours. Nor should residents be allowed to sit for hours on end in a wheel chair without pillows or other means to reduce pressure points between their skin and the chair itself.

Pressure sores may also result if the bed-ridden elderly person is dragged or slid across bed sheets, thereby creating potentially harmful frictional forces between the person’s skin and the bed sheet. (Reference 2). It is also conceivable that “dragging” an elderly frail person may result in injuries to muscles or bones quite apart from bedsores. Such treatment may also constitute abuse. Nursing home patients are entitled to respectful, gentle treatment to prevent injuries, and it is up to the administrators to ensure that the residents are treated appropriately.

Another known risk factor involves incontinence. Failure to frequently change the underwear of individuals who are incontinent may increase the risk of developing bedsores; the resultant wetness from bodily waste can make the skin too soft and more likely to be injured by pressure.

Diabetes and hyperglycemia are two other well known risk factors for bedsores. One would hope that any nursing home resident or hospital patient who is known to be diabetic or hyperglycemic would receive a “heightened scrutiny” type of monitoring for bedsores from the onset of his or her hospitalization or residence at a nursing home.

Bedsores are generally associated with nursing homes. It must be emphasized, however, that bedsores do not only originate in nursing homes. Elderly people who are hospitalized also have a high risk of developing bedsores due to the various risk factors which make them susceptible to bedsores. Patients transferred from hospitals to nursing home rehabilitation centers or being returned to their previous nursing home residences, are particularly vulnerable to bedsores according to the statistics. It has been estimated that at least 10% and upwards of 35% of individuals transferred from hospitals to nursing home rehabilitation centers or the nursing home where they had previously resided prior to hospitalization already have bedsores at the time of admission. (Reference #4). Nursing homes should thus make every effort to carefully check any patient being transferred to the nursing home for bedsores at the time of admission. Without proper medical care, even minor bedsores originating at the hospital may “turn into” serious Stage III and Stage IV bedsores.

We further emphasize that pressure sores are not merely a condition of the elderly. Individuals suffering from conditions which prevent movement such as paralysis, severe arthritis and/or multiple sclerosis, are susceptible to bedsores because of their inability to move without assistance. Recently, Eric Trainor, a 30-year-old New York State resident, was awarded $2.2 million by a jury for the pain and suffering caused by horrific bedsores. As a consequence of a motor vehicle accident in which he had been a passenger, the Mr. Trainor had been hospitalized at Westchester Medical Center. His injuries had caused him to become a quadriplegic. Because of the hospital’s failure to turn the injured patient every two hours during his 6 week stay, the patient developed Stage IV bedsores which had to be surgically closed. Furthermore, as a consequence of the bedsores, the injured man had to refrain from participating in physical rehabilitation so much so that he lost the chance to build up his upper body strength.

Continue reading "A Lawyer's Perspective: Quality Care Programs Based on Objective Quality Indicators for the Strategic Purpose of Reducing Bedsores in Nursing Home Residents and Hospital Patients " »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Bedsores , Bedsores - Hospitals , Nursing Home Abuse , Nursing Home Negligence , medical malpractice

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The Sun Sentinel recently provided an outstanding public service to the citizens of Florida by exposing serious loopholes in Florida law which have allowed individuals of questionable background to obtain employment in day-care-centers, assisted-living facilities (ALFs), and nursing homes, sometimes even before the results of their criminal background check were obtained. Even if the background checks raised red flags, many felons were able to continue working as caregivers with children or the elderly by “establishing” that they were reformed felons to the satisfaction of the Department of Children & Families or the Agency for Healthcare Administration.

Both nursing homes and ALFs are regulated by the Agency for Healthcare Adminstration. ALF's are also known as adult congregate living centers and are governed by Chapter 429, Florida Statutes. ALFs may range from large residential facilities to private homes. Generally, ALFs which have been granted a stadard license by the State of Florida are required to provide only the "basics" of day-to-day living and limited personal services. A special license is required to provide nursing services through licensed nurses.

Nursing homes often involve large institutions which provide skilled nursing care and are governed by Chapter 420 of the Florida Statutes. Nursing home residents may include long-term residents or residents who are released to the nursing home for a period of rehabilitation following a hospital stay. The latter situation typically occurs when the elderly person is released to a nursing home directly from the hospital, say, for example, after a hip replacement surgery, for an interim stay at a nursing home.

Individuals who work at nursing homes or ALFs and will be performing personal services on behalf of the elderly residents are supposed to pass a background check pursuant to Florida Statute 435.03, otherwise known as "Level I" screening. Interestingly, the Level I screening requirement does not require a nationwide background check for criminal "activities" through the Federal Bureau of Investigation (FBI). The "loose" Level I screening requirements mean that theoretically a former felon from another state could move to Florida, begin working at a nursing home or day-care center or ALF and pass a Florida background check!

As the Sun Sentinel Article pointed out, a more stringent background check (Level II) involving a nationwide criminal background check is required for individuals whose jobs involve handling financial assets pursuant to Florida Statute 435.04.

Furthermore, the law allows individuals who have a suspect criminal background record to apply for an exemption through Florida Statute 435.07. Perhaps it is this loophole in the law that is most disturbing. According to the Sun Sentinal report, the "exemption" system has cleared nearly 9000 individuals with a criminal past to work as caregivers with children and the elderly. The report has prompted state officials to investigate over 850 individuals who were cleared to work as caregivers and then re-arrested for new crimes!

As a consequence of the Sun Sentinel's investigation, legislation is now being proposed to close this loophole where nationwide background checks for children and elder caregivers would be required before such caregivers are even hired. Also, Florida's Attorney General, Bill McCollum, has ordered a review of Florida's questionable employee screening system which has allowed convicted felons to work in nursing homes, day-care centers, and assisted living facilities (ALFs). Bravo!

It is difficult to understand just why Florida has such loosy goosy standards in place. Perhaps the underlying intention was to give reformed felons a “second chance” in life. Unfortunately this program has resulted in serious ramifications for unsuspecting elderly adults and their families as the Sun Sentinel investigative series discussed. For example, a jury has just convicted Andrew Gosciminski, a supposedly “reformed” felon, for the robbery and murder of the daughter of a resident at the Fort Pierce ALF where he was actually the marketing director! The jury recommended the death sentence.

The Sun Sentinel also reported a case where an "exempt" former felon stole $36,000.00 from the patients at the nursing home where she was employed and pedophiles have been employed in jobs where they have routine contact with children! Moreover, the high recidivism rate of felons is well known. Who knows if certain former felons who seek employment at facilities serving our vulnerable citizens are simply looking to commit crimes of opportunity? Or perhaps, the crime of opportunity, which happens to present itself, is just too good to pass up.

Thanks to the Sun Sentinel's investigation, Florida state senators and representatives are promising to take swift action to remedy these pitfalls in Florida law. As nursing home negligence and abuse attorneys, we have posted numerous blogs on nursing home negligence and abuse, including one blog which touched on implementing common sense procedures designed to better protect the elderly from injuries related to negligence and/or abuse. Requiring stringent screening standards for those who work with the elderly and children is surely a common sense approach for protecting our vulnerable citizens from exploitation by “unsavory” characters which can result in both physical harm and financial harm. Afterall, what better a victim than an elderly person suffering from frailty, dementia, and/or Alzheimer's?

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Nursing Home Abuse , Nursing Home Negligence

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Our previous blogs on the subject have primarily focused on bedsores resulting from nursing home neglect. This blog will focus on other serious potentially life-threatening ailments resulting from nursing home negligence and abuse.

One systematic problem in Florida and throughout the country is failure to staff the nursing home facility with a sufficient number of employees willing and capable of dealing with problems of the aged. In a previous blog, we emphasized that the adoption of clearly-defined quality assurance measures could help address this problem, and one such measure involves the on-going training of employees.

Residents of nursing homes often arrive with specific physical ailments and often in the course of their stay, their ailments may worsen or other physical ailments may arise. We would emphasize that even the best nursing homes cannot be expected to totally prevent their residents from getting sick, acquiring new ailments, or undergoing worsening of their pre-existing ailments. After all, the nursing home population is comprised of individuals who, for the most part, are there because of poor health, either physical, mental, or a combination of the two.

Nevertheless, nursing home staff members should have the capability of at least identifying situations where follow-up medical intervention should be recommended and promptly rendered.

In a 2007 New Mexico case, a nursing home resident died of a gastrointestinal hemorrhage. Gastrointestinal hemorrhages usually do not occur out of the blue. They are preceded by worsening gastrointestinal problems. In the New Mexico case, the unfortunate victim’s estate successfully sued the facility on the following grounds:
1) Failure to properly assess her condition;
2) Failure to provide qualified employees to care for her.
Keith v. Manorcare, Inc., N.M. Bernadillo Co. Jud. Dist., No. CV2005-08066, June 2, 2007.

Continue reading ""Watchdog" Suggestions for Identifying Nursing Home Negligence & Abuse" »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Bedsores , Nursing Home Abuse , Nursing Home Negligence

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Attorneys involved in litigating nursing home neglect matters involving bedsores often encounter situations where more than one institution may be fault. For example, quite frequently the initial at-fault facility may be the hospital where the bedsore victim was a surgery patient. The surgery itself may have been executed perfectly. Yet, in the relatively short hospital stay after the surgery, the hospital’s staff may fail to use procedures which are well known to help reduce the possibility of bedsores in the recuperating patient. Perhaps the non-ambulatory patient had not been sufficiently turned, thereby increasing the risk of bedsores. Perhaps sufficient bed padding had not been provided to help “cushion” the patient’s body, particularly the buttocks area and feet where bedsores most often occur. Perhaps protective body lotions had not been used to provide a protective barrier between the patient’s body and bed sheets and thereby help reduce the possibility of bedsores.

In a previous blog, we distinguished the four stages of bedsores. Quite frequently bedsores arising from relatively short hospital stays due to inadequate nursing attention are highly treatable Stage I or Stage II bedsores. We would encourage the patient’s family members and friends to be on the lookout for possible bedsores. Suspected bedsores should be immediately reported to the nursing staff and the family members should follow up to ensure the proper wound care procedures have been initiated. Remember that the earlier a bedsore is caught, the more easily it can be treated. Once a bedsore progresses to a Stage 3 or Stage 4 bedsore, the prognosis becomes substantially worse.

If the patient is to be transferred from the hospital directly to his or her home or a family member’s home, the patient and/or the patient’s family members should carefully check the patient’s body for bedsores at the time of the patient’s release and take photographs if any suspect bedsores are found. If suspect bedsores are found, the patient should be seen by a doctor. The doctor will likely make a referral to a wound care specialist.

Continue reading "POTENTIAL DEFENDANTS IN A NURSING HOME NEGLIGENCE MATTER" »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Bedsores , Nursing Home Negligence

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Contractual Agreements often contain a provision requiring any legal dispute between the parties to be settled by binding arbitration instead of a lawsuit. More often than not, the terms of the arbitration provision in a contractual agreement are non-negotiable, and very often the parties signing such an agreement do not “come to the agreement” as parties with equal bargaining power. Often times, one of the parties may not even understand the full implication of the arbitration provision should a dispute between the parties ever arise.

We would like to emphasize that alternative dispute resolution procedures such as mediation and arbitration do have their place and can reduce the costs and time associated with prolonged litigation. A serious problem arises, however, where the arbitration agreement attempts to so “overly” protect one of the parties, that the arbitration agreement is invalid based on procedural and substantive unconscionability and/or is contrary to public policy.

Courts have frequently been called upon to determine the enforceability of arbitration agreements. In fact Florida law is very clear that courts have the obligation to determine whether a written agreement to arbitrate is valid when deciding a motion to compel arbitration. See Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005).

Many times arbitration agreements are upheld. Courts will not, however, uphold an arbitration agreement where the arbitration agreement is found to be void as contrary to public policy. Where the Contractual Agreement, which contains an “arbitration agreement” provision, also contains a severability clause, the court may also simply sever the offending arbitration agreement provision from the Contractual Agreement and find that the rest of the agreement is acceptable.

Previous blogs have addressed conduct generally associated with nursing home negligence and/or abuse. Individuals reading this blog may not realize that many nursing homes are now seeking to limit damages awarded to the injured resident for the nursing home’s negligent conduct by requiring the resident and/or his/her legal representative to sign an Arbitration Agreement in connection with admission to the facility. Yes, an admission to a nursing home, generally involves a formal contract, folks. Perhaps not surprisingly, such arbitration agreements have been “attacked” by injured nursing home residents as being void as contrary to public policy and inconsistent with the provisions for patient’s remedies under Florida’s Nursing Home Resident’s Act, also known as the Nursing Home Bill of Rights.

Many times, admissions to nursing homes occur where the resident and family members are making very difficult decisions concerning their elderly or sick family member’s quality of life. Most individuals are not signing nursing homes admissions documents such as arbitration agreements in contemplation of future personal injury litigation because they presume that their loved one will be well taken care of.

What happens if the nursing home resident is a victim of nursing home negligence and/or abuse and an arbitration agreement was signed as part of the admissions process? It all depends on whether the arbitration agreement is valid or invalid. The following discussion contrasts an invalid nursing home arbitration agreement with an acceptable nursing home arbitration agreement according to Florida law.

Continue reading "Nursing Home Negligence Litigation and Arbitration Agreements: The Intersection of Contract Law and Negligence Law" »

Posted by Troy & Schwartz | Permalink | Email This Post

Posted In: Nursing Home Negligence

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In our previous blogs on nursing home neglect and/or abuse, we emphasized the ailment most frequently associated with nursing home neglect, namely decubitus ulcers, commonly known as bedsores.

Though bedsores get the most publicity, there are many other serious medical outcomes resulting from nursing home neglect. This blog will focus on two (2) such outcomes: 1) injuries from falls; and 2) injuries resulting from failure to monitor eating limitations of elderly residents.

I. Falls in Nursing Homes. Of the approximately three million people who spend some time in nursing homes each year, most are elderly and may have actually ended up in a nursing home in the first place because of complications resulting from a fall at home. In addition, individuals who reside in nursing homes are generally more frail because of their generally advanced age, have poor eyesight and/or hearing, and suffer from chronic conditions such as diabetes. Many nursing home residents also suffer from senility, dementia, or Alzheimer’s.

Statistics compiled from clinical studies confirm the fact that nursing homes falls are not a rare event. For example, studies conducted by LZ Rubenstein and his colleagues demonstrate that as many as 3 out of 4 nursing home residents fall each year, or put another way, about two times as many nursing home residents fall each year as compared to adults living in the community. Other studies have shown that while 5% of adults 65 and older live in nursing homes, nursing home residents account for about 20% of deaths from falls in this age group. See Ref. 1.

Of course, as with any statistical results, the results must be viewed against the backdrop of the fact that individuals who reside in nursing homes are generally more frail because of their generally advanced age, have poor eyesight and/or hearing, and suffer to a greater extent from chronic conditions such as diabetes relative to their non-nursing home counterparts. Those residents who are not totally confined to a wheel chair will generally have difficulty walking and bending and have gait problems. Just being confined to beds and wheel chairs may in and of itself result in muscle atrophy and weakness, thereby making the elderly resident more susceptible to falling, for example, when moving from a bed to a chair. Moreover, the many nursing home residents who suffer from senility, dementia, or Alzheimer’s are often medications which affect the central nervous system, thereby making them further susceptible to falls. See Ref. 2. In other words, the typical nursing home resident is not living at the facility for fun and games but because of genuine old-age related health issues.

Most nursing homes are for-profit institutions. As with any for-profit institution, the management makes decisions concerning the funds they will spend on operating their institution. One would hope that the decision-making process would be based on the safety and health requirements of the very people they are licensed to serve, namely elderly adults no longer able to take care of themselves because they are suffering from a variety of limitations and ailments, both physical and mental.

Since falls frequently occur in nursing homes as a consequence of these limitations and ailments, the ideal nursing home facility will be pro-active in taking steps to try and prevent falls to its residents. The Centers for Disease Control states that “[f]all prevention takes a combination of medical treatment, rehabilitation, and environmental changes.” One of best ways to prevent falls would be to ensure that the staff members are formally trained on and educated about fall risk factors and prevention strategies on a scheduled basis. See Ref. 3. It is the day-to-day staff that has the most interaction with the facility’s patients, not high level managers ensconced in some suite of offices often off-site. Such staff members should of course also be trained and monitored in the detection and prevention of bedsores. And of course, the nursing home institution should hire a sufficient number of staff members to meet the needs of their elderly residents.

Continue reading "Nursing Home Negligence and Abuse: Just Who’s Minding the Store?" »

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Our first Nursing Home Neglect and Abuse blog dealt with the Florida Nursing Home Bill of Rights and summarized the various ways, e.g., the occurrence of bedsores, in which nursing home neglect and abuse may be manifested. Our second Nursing Home Neglect and Abuse blog discussed institutions besides nursing homes where bedsores may develop due to the institution’s negligence; these institutions include hospitals and rehabilitation centers. These blogs also addressed the often complex underlying emotional remorse and anger which the victim’s family may experience upon realizing that their loved one has been the victim of nursing home neglect.

In this blog, we focus more specifically on an actual situation where a nursing home negligence victim does not recover from serious bedsores prior to passing away, and the subsequent death certificate completed by the attesting doctor relates that the cause of death was caused by something other than the bedsores.

Let us take the case where a senior loved one develops bedsores while residing at a nursing home. The bedsores are not dealt with properly from the beginning and unfortunately develop into Stage III or possibly Stage IV bedsores. The victim’s family is very attentive and complains to the nursing home staff as soon as the bedsores are observed. Yet, the nursing home fails to take proper action to prevent bedsore evolution from a relatively minor wound into a serious and potentially life threatening situation. Unfortunately, nursing homes which are receiving limited Medicare and Medicaid funds to “house” certain residents, may be less likely to respond to family complaints, even though theoretically, all residents should be receiving the same level of care regardless of whether the nursing home is being paid through private funds or government funds. It should be noted that diabetic residents may be particularly prone to bedsores.

Let us now assume the unfortunate bedsore victim develops Stage IV bedsores and dies, either in the nursing home or in the hospital where she was transferred in the last days of her life. The doctor who completes the death certificate, though aware of the bedsores, lists heart failure, e.g., as the cause of death. The victim’s family understands that their loved one had a long term heart condition, but is reasonably certain that their elderly loved one actually died of complications typically related to Stage IV bedsores, such as sepsis.

The family members may nevertheless feel helpless in questioning the authority of the doctor who signed the death certificate. Attorneys may also be hesitant about challenging the medical examiner’s opinion because of the legal costs involved and because of the “weight of authority” generally given the attesting doctor's stated opinion.

A recent case out of the Fifth Circuit Court of Appeal in Florida, however, suggests that the legal landscape may be changing. In Marshall, etc. v. HQM of Winter Park, LLC, etc., 959 So. 2d 1207 (Fla. 5th DCA 2007), the Plaintiffs’ son had been admitted to the Defendant's nursing home facility for care relating apparently to a terminal condition. Sadly, he died the next day. The death certificate, stated that the cause of death was due to his pre-existing terminal condition.

Continue reading "Wrongful Death Cases Involving Bedsores: What if the Death Certificate Fails to Mention Bedsores as the Cause of Death? " »

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One of the most publicized areas of nursing home neglect involves the development of Decubitus Ulcers, more commonly referred to as pressure sores, or bedsores. The association of nursing homes with bedsores is so common that one would think bedsores only occur in a nursing home setting. That is not the case. Bedsores frequently occur in hospitals, after a serious operation requiring hospital stay. While the operation and post-operative medical care may have been excellent, patients confined to bed and can quickly develop bedsores if the nursing staff fails to turn the patients with sufficient frequency from one side to the other.

This failure to turn allows the pressure from lying in place or sitting too long on a wheelchair to cut off circulation to what the Mayo Clinic refers to as vulnerable body areas, such as the buttocks, hips and heels. Without adequate blood flow, the affected tissue dies.

Once a bedsore has developed, it should be treated rapidly or it may well progress from a superficial stage (Stage 1 bedsore) characterized as an itchy or slightly painful area of red skin to a more serious condition in which the wound becomes an open sore. This Stage 2 bedsore looks like a blister or abrasion but is still susceptible to quick healing if the treatment is prompt.

In a well-staffed and efficient hospital, the early stage bedsores will be recognized and treated effectively. However, in the absence of early intervention, “early stage” bedsores may well worsen when the patient is discharged to his or her home or to a rehabilitation facility, or even back to a nursing home.

This allusion to rehabilitation facilities points to another locus within our health system where: 1) bedsores can either originate; or 2) pre-existing bedsores from the patient's hospital stay can worsen. Without proper treatment, relatively minor Stage 1 and Stage 2 bedsores can worsen into crater-like wounds below the skin (Stage 3) and even deteriorate further into Stage 4 bedsores. Stage 4 bedsores involve a large scale loss of skin along with the possibilities of muscle, bone, tendon or joint damage. These wounds are particularly difficult to treat and can lead to infection and even death.

Since bedsores ranging from the early stages to the more serious ones occur in hospitals and rehabilitation facilities, as well as in nursing homes, why – it could be asked – is so much of the glare of publicity, and so much of the litigation focused on bedsores arising from nursing home neglect?

One answer may be that a large share of the nursing home resident population is composed of elderly people who may have been moved to such facilities by well meaning family members simply because they are too old, too enfeebled, or too lacking in cognition to be cared for at home. In a nursing home setting, many of the residents are what Mark Twain might have called “Innocents Abroad.” They need a lot of skilled care and are too often no longer sufficiently mentally acute to demand help or to verbalize their discomfort and/or pain. What makes this problem even more serious is that the resident’s close family member(s) may not have the awareness of the painful consequences that can spring from neglect in a nursing home environment. Nor may family members have the opportunity to visit frequently enough due to a variety of reasons such as geographical separation, work obligations, and/or other family obligations (such as small children ) to be able to ask the right questions and demand the answers they are entitled to under various Nursing Home Bills of Rights enacted by most states, including Florida.

Continue reading "BEDSORES: A VERY REAL INJURY" »

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