NJ Nursing Home Abuse

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.
  1. 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.

  1. 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

  1. 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.”

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