NJ Nursing Home Abuse Lawyer

NURSING HOME NEGLECT

The largest single cause of injury to nursing home residents is injury due to a preventable fall. A typical 100 bed nursing home reports at least 100 to 200 falls per year. Keep in mind these are only the reported falls. Another danger facing nursing home residents is the development of preventable bed sores. A bed sore or pressure ulcer usually develops over a bony prominence and can range from a small bruise to a gaping hole in the skin which goes all the way down to the bone. The sores can rapidly develop and can cause serious health issues including life-threatening infection. In an effort to protect nursing home residents, the State of New Jersey implemented a law that requires nursing homes to render care so that it’s residents can avoid developing a bed sore and if a bed sore develops, that it is properly treated so that the bed sore is resolved.

1. Nursing Home Injuries:

Elder abuse, also known as nursing home abuse, involves damages incurred by an elderly individual/patient while under the complete or partial care of a nursing home in\ olved in elderly care.

Types of Injuries:

• • Medical/Health Injuries include bed sores (pressure ulcers), rashes, malnutrition, dehydration, infectious disease, bacterial infections, fractures and other orthopedic injuries.

• Wrongful Death which is often the result of prolonged neglect, physical abuse, prescription drug errors, failure to address existing medical issues as they arise which the elderly patient wants addressed.
• Sexual Abuse which can lead to both medical and psychological damages.
• Emotional Damages resulting from the vulnerable position faced by the elderly who are aware of the pain, suffering and abuse they experience.

2. Definition of Nursing Home

United States Code: Title 42, Section 1395i-3:

(a)       Skilled nursing facility defined

In this subchapter, the term “skilled nursing facility” means an institution (or a distinct part of an institution) which –

          (1)        is primarily engaged in providing residents –

• skilled nursing care and related services who require medical or nursing care, or
• rehabilitation services for the rehabilitation of injured, disabled or sick persons,

And is not primarily for the care and treatment of mental disease^:

(2)        has in effect a transfer agreement (meeting the requirements of section 1395x (1) of this title) with one or more hospitals having agreements in effect under section 1395cc of this title; and

(3)       meets the requirements for a skilled nursing facility described in subsections (b), ©, and (d) of this section.

3. One Common Nursing Home Injury is Pressure Ulcers/Sores.

A.)      What is a Pressure Ulcer/Sore – They range from a small bruise loa gaping hole in the skin which goes all the way down to the bone. They commonly occur in elderly people who are immobile or have limited mobility. The National Pressure Ulcer Advisory Panel (NPUAP) defines a pressure ulcer as “a localized injury to the skin and/or underlying tissue usually over a bony prominence as a result of pressure, or pressure in combination with shear and/or friction.”

• Stage I – redness without skin loss.
• Stage II – blistering involving partial skin loss.
• Stage III – full thickness skin loss without exposure to the bone.
• Stage IV – full thickness skin loss with exposed bone which many times has necrotic tissue.

B.)      Are Pressure Ulcers/Sores the Result of Neglect?

THE LAW IS THAT THE NURSING HOME MUST RENDER CARE SO THAT THE RESIDENT CAN AVOID DEVELOPING A BED SORE AND IF A BED SORE DEVELOPS, THAT IT IS PROPERLY TREATED SO THAT THE SORE IS RESOLVED.

* In other words, the nursing home is responsible unless the bedsore is unavoidable. To be unavoidable, the nursing home must establish that the resident has a clinical condition that makes the resident susceptible to pressure ulcers and that the nursing home took all steps to render necessan treatment and promote healing, prevent infection and prevent new sores from developing.

C.)      Nursing Home Liability for Pressure Ulcers is based on Federal Regulations which are incorporated into the NJ Nursing Home Bill of Rights

What is a pressure injury?

A skin breakdown due to pressure.

The common areas of skin breakdown involve:

• Head
• Ear
• Shoulder
• Elbow
• Sacrum
• Buttocks
• Gluteal fold
• Heels

 

*Stage 3 and Stage 4 pressure ulcers are the worst types and the most common types that people have to file a lawsuit because of.

*Pressure ulcers are measured by length times width times depth.

Avoidable vs. Unavoidable Pressure Ulcers

A. Avoidable – Provider did not do:

1. Properly evaluate condition and ulcer risk factors;
2. Define and implement interventions;
3. Monitor and evaluate the impact of the interventions; and
4. Revise intervention approaches as appropriate.

Note – A provider must set up a care plan – which is a roadmap of what to do and they must follow it.

B. Unavoidable Pressure Ulcers:

*A pressure ulcer can develop despite a provider following all the factors above (numbers 1 through 4 above).

Law Establishes the Standard of Care

42 CFR §483.25(c) states that a facility must:

1. Insure that a resident without a pressure sore does not develop one; and
2. If a resident enters with a pressure sore that it does not get worse.

How are Facilities Supposed to Assess the Risk for the Development of a Pressure Ulcer

The Braden Scale is the standard for assessment of pressure ulcer risk and involves the following:

1. Sensory perception:

• Can the patient communicate?
• Can the patient help themselves?
• Can the patient understand?
• Or does the patient have dementia?

2. Moisture:

• How frequent is the patient wet?
• To what degree is the patient’s skin exposed to moisture?
• How soon is the diaper changed?

3. Activity:

• Is the patient able to get up and move?
• What is the patient’s degree of physical activity?

4. Mobility:

• Is the patient able to change and control their body position?
• Is the patient bed bound?
• Is the patient wheelchair bound?
• Can the patient walk around?

5. Nutrition:

• What is the patient’s usual food intake pattern?
• Is the patient subjected to friction and shear?
• Example – Is the patient in a motorized bed that moved up and down thereby causing the patient to move or slide when the bed is moved up and down?

Documentation, Documentation, Documentation

The facilities’ own forms can be very helpful for the attorney and are not always easy to get:

1. The forms will tell you whether the patient is a person at risk for pressure ulcers.
2. The forms will tell you whether the patient has a pressure ulcer and if so, at what stage.

Types of Forms:

Wound document sheets:

1. Describes if a pressure ulcer exists and if so it’s size including length by width by depth.
2. Describes a pressure ulcer’s location.
3. Describes whether there is drainage from the pressure ulcer.

Care plans – these are fluid and revolving plans

A care plan may include the following:

• Use pressure relieving cushions;
• Have patient 2 hours in bed and then move 1 hour to chair;
• Refer patient to a podiatrist;
• Request a nutrition consultation for patient;
• Use barrier cream for incontinent patients; and
• Speak to turning and repositioning patients and the frequency of doing so.

Look to the Policies and Procedures of the Facility to Determine Standards of Care

Look at the Facility’s Clinical records pursuant to §483.75(1)(5) which must contain:

• Information to identify the resident;

CNA’s write on a flow sheet and generally provide care of repositioning and assisting patients with their activities of daily living.  The attorney has to obtain and review all records, not just a shift or two. We ask:

• Are the records consistent?
• Have the patient’s needs changed?
• Does the care plan reflect the fact that the patient’s needs have changed?
• Care plan meetings are generally every 30 to 45 days.
• Are there team meetings that can bring changes daily based upon a patient’s change in condition?

Depositions – We Sit Down with the Nursing Home Representas and Employees and Question them Under Oath

1. CNA:

• They do daily care.
• Often instructed to do something and have to follow those instructions

2. LPN/RN:

• Many times there are not enough of them to cover all the patients

3. Director of Nursing:

• Knows the policies and procedures.

4. Wound Care Nurse:

• What did they see when they saw the wound?

5. Dietician:

• What is the patient’s nutrition?

6. Administrator:

• Surveys on how well or poor the facility is doing are done by the State and Federal levels.  Has to sign off on these surveys.
• Give a plan to the State on how they are going to fix any identified violations.

Get Cost Reports

• Cost reports keep track of expenditures, revenue, outside services and how much the facility is taking in.
• For nutritional deficiency cases it will tell you food costs and more

Mattresses

There are various mattresses that can be utilized when a patient is at risk or is beginning to develop pressure ulcers.  They vary in effectiveness and cost and include:

• Foam mattresses;
• Low air loss mattresses;
• Alternating air mattresses; and

Nutrition

The facility is required to make assessments of the patients which will be broken down into 4 groups below.  Pressure Ulcers do not heal if the patient lacks proper nutrition.

4 Assessment Groups:

1. Intake and output.
2. Weight of the patient over time.
3. Labs.
4. Dysphagia – trouble swallowing.

Treatment of Pressure Ulcers

• Debridement of the wound generally for Grade 4 pressure ulcers.
• Graph skin and place over the debridement/ulcer.
• Vac to suck out infection from wound.

4. FEDERAL REGULATION 483.25 sets forth the duty of the nursing home as follows:

“Based on the comprehensive Assessment of a resident, the facility musi ensure that:

1. A resident who enters the facility without pressure sores does noi develop pressure sores unless the individual’s clinical condition demonsirates that they were unavoidable; and
2. A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.”

5. NEW JERSEY NURSING HOME BILL OF RIGHTS – N.J.S.A. 30:13-5.

Nursing Home Liability is based on Federal Regulations which are incorporated into the NJ Nursing Home Bill of Rights.

“Every resident of a nursing home shall:

1. Have the right to manage his own financial affairs unless he or his guardian
   authorizes the administrator of the nursing home to manage such resident’s
   financial affairs….
2. Have the right to wear his own clothing….
3. Have the right to retain and use his personal property in his immediate living
   quarters…
4. Have the right to receive and send unopened correspondence and. upon request, to
   obtain assistance in the reading and writing of such correspondence.
5. Have the right to unaccompanied access to a telephone at a reasonable hour,
   including the right to a private phone at the resident’s expenxe.
6. Have the right to privacy.
7. Have the right to retain the services of his own personal physician at his own
   expense or under a health care plan….
8. Have the right to unrestricted communication, including personal visitation with any persons of his choice, at any reasonable hour.
9. Have the right to present grievances on behalf of himself or others to the nursing home administrator, State governmental agencies or other persons without threat of discharge or reprisal in any form or manner whatsoever….
10. Have the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person’s care consistent with sound nursing and medical practices.
11. Have the right to refuse to perform services for the nursing home that are not included for therapeutic purposes in his plan of care as recorded in his medical record by his physician.
12. Have the right to reasonable opportunity for interaction with members of the opposite sex..
13. Not to be deprived of any constitutional, civil or legal right solely by reason of’ admission to a nursing home.”

6. DAMAGES

N.J.S.A.30:18-8 creates a private right cause of action on behalf of a resident of a nursing home whose rights have been violated under the New Jersey Home Bill of Righis (above).

Attorney Fees and Costs: This statute entitles a prevailing party to reasonable attorney fees and costs.

Punitive Damages: Punitive Damages are available if there is clear and convincing evidence that the Nursing Home’s violations of the NJ Bill of Rights constitutetl “deliberate acts or omissions with knowledge of a high degree of probability of harm and reckless indifference to the consequences.”