Representing Elder Physical Abuse Victims

Vol. 32 No. 6

By

Mark A. Redmond (mr@markredmondlaw.com) is the principal of the Law Office of Mark A. Redmond, PC, in Sacramento, California. He has been practicing law for 23 years and has focused primarily on the representation of elders in cases of physical and financial abuse for the last 15 years.

Litigation involving the physical abuse of an elder is a complicated but rewarding area of practice. Families will be contacting you after something terrible has happened to their loved one. Whether they express it or not, these families are filled with remorse over choosing the wrong health care facility or failing to recognize what was happening at the facility or failing to move their loved one to a better facility. These families come to you devastated and shamed by their own situation, yet time and again the single biggest emotional motivation for these families to seek an attorney is the desire to prevent their tragedy from happening to others.

On the other side of any physical abuse litigation is the health care facility. It has the task of caring for numerous residents with serious medical conditions. In spite of this, these facilities employ the fewest, least-skilled, and least-trained staff that they can get away with as part of their standard business model.

In the early years of elder physical abuse litigation, the mere fact that something terrible had happened to an elderly person while in the care and custody of a facility seemed enough to shock jurors and prevail in a case. Over the past ten years, the defense bar and its experts have become far more adept at persuading arbitrators, judges, and juries to focus not on their facility’s failings but on the elder’s “pre-existing conditions” as the basis for the unfortunate medical outcome. Even when defense counsel do not prevail with this tactic, they believe it to be effective in dulling the impact of the facility’s poor care and the elder’s resulting injury. In between the elder’s suffering, the family’s guilt, and the facility’s denial lies the drama of the case.

The Basics of Elder Physical Abuse Cases

Although there are numerous types of elder care facilities in different jurisdictions, they really break down into two categories: those facilities that can provide skilled nursing care and those that provide non-skilled, custodial care. At a skilled nursing facility there will be 24-hour licensed nurses on duty who actively manage ongoing medical conditions and provide skilled nursing assistance such as wound care and injections. There are also likely related services available such as dietary services, physical therapy, and occupational therapy.

All other elder care facilities fall under the heading of residential care facilities. These typically include assisted living facilities and residential board and care homes. Most often they will not have licensed nursing staff on duty and will provide only “custodial care” for elders. Custodial care includes assistance with an elder’s daily living activities such as bathing, dressing, toileting, meal preparation, and general safety oversight.

A core concept that often gets lost in the individualized facts of an elder physical abuse case is that all skilled nursing facilities are subject to a federally mandated level of care such that residents attain and maintains the highest practicable level of physical, mental, and psycho-social well-being. Thus, a facility should be providing residents with far more than “common warehousing.” In addition to this general high bar for resident care, there exists a low-bar list of absolutely unacceptable occurrences for licensed health care facilities—so-called “never events.” These are events that should never occur in a licensed health care facility.

Some examples of “never events” include death or serious disability associated with patients wandering away from a facility; death or serious disability associated with a medication error; death or serious disability associated with a fall; stage 3 or stage 4 pressure ulcers (where the sore has broken the skin and goes into the muscle and may go as deep as the underlying bone); suicide or attempted suicide resulting in serious disability; death or serious disability associated with a burn; death or serious disability associated with the use of physical or chemical restraints or bedrails; death or significant injury of patients from physical assault; and death from sepsis, septic shock, failure to thrive, or other terminal events caused by an egregious failure to provide patients with the basic elements of care including hydration, nutrition, mobility, hygiene, and socialization. Sadly, these horrific events lead to some of the most commonly litigated elder physical abuse cases against skilled nursing facilities. And while residential care facilities are not licensed health care facilities, there really is no good reason why these events should occur in those facilities, either.

Failing to Follow the Nursing Process

So what makes an elder abuse case? It is generally encompassed by the significant failure to follow the three steps of the “nursing process.” First, were the care needs of the resident properly assessed? Second, was a written plan of care developed to provide for these care needs? Third, was the plan of care implemented and followed by the staff? A few common examples will be helpful in understanding how a facility followed or neglected to follow these three essential steps in providing care to residents.

Fall cases. One of the most common problems affecting elder residents is falls. According to statistics from the Centers for Disease Control and Prevention, more than 250,000 seniors suffer falls each year, and common injuries resulting from these falls are serious, including broken hips, closed head injuries, and death. Key risk factors for falls include past falls, inactivity, cognitive impairment, and the taking of four or more medications or any psychoactive medications. Using these factors, a nursing home should be able to assess a resident’s risk of falls; if the resident is being placed in a non-skilled facility, a doctor will assess.

After assessment, the facility needs to develop and implement a plan of care to lessen the risk of a fall. Common ways to reduce the risk of falls include locating a resident near the nurse’s station, providing frequent, time-specific monitoring, use of bed or wheelchair alarms, a decrease in resident medications where appropriate, an increase in safe resident activities, scheduled toileting times, and lowering of a resident’s bed or utilizing rubber mats by a resident’s bed where feasible.

Although it is a basic truth that none of these interventions can absolutely prevent a fall from occurring, it is a higher truth that there is no reason for failing to consider and implement all these interventions as appropriate in the effort to lessen a resident’s risk of falling.

Wandering cases. Wandering cases in particular tend to have tragic outcomes that often could have been avoided if the nursing process had been fully utilized. The first step in such a case is to see if a proper resident assessment had been done on the topic of wandering risk. In a skilled nursing facility this will be done by the nursing staff, and for other types of facilities it will be done by the resident’s physician. If an assessment shows the potential for wandering, then a care plan must be created and implemented in order to lessen or eliminate the risk. This care plan must include an initial and ongoing determination that the facility can meet all the safety and care needs of the resident. Assuming that the facility can do this, it is essential that the facility locate the resident in a part of the facility where frequent, time-specific monitoring is done. Additionally, residents at risk for wandering should be located away from obvious dangers such as doors, stairwells, and windows. The use of various alarm systems should be considered and likely implemented, including door, bed, and wheelchair alarms. Staff needs to be sufficient in number and training to detect agitation or other potential signs that a resident may be at heightened risk for wandering as well as trained in how to redirect residents to safety if they attempt to wander.

Because wandering cases often have especially tragic endings, it is important to be wary of potentially false accounts of how a resident got out of the facility or how an injury was incurred. In one recent case the elder was said to have gotten out of the facility through a window. Later we learned that the window in question was a second-story window; according to biomechanics experts, exiting through this window would have resulted in serious bruising and fractures, none of which the elder had suffered. In another recent case, the elder was said to have suffered full thickness burns caused by sun exposure after wandering out of the secured, interior portion of their facility. In this case everyone testified that the resident was found wearing a sweater and jacket. Thus, we were able to prove that the full thickness burns she had across her shoulder blades were impossible to have been the result of sun exposure, which would certainly have resulted in burns to her exposed skin, not her covered shoulder area.

Bedsore cases. Finally, bedsore cases illustrate the importance of following the nursing process. The risk factors for bedsores include lack of sensory perception, moisture (commonly from urine and feces), lack of activity and mobility, and poor nutrition and hydration. Once these risk factors have been assessed, an appropriate care plan can be created and implemented. At a minimum the plan should include turning and repositioning of the resident off his or her bony prominences at least every two hours while in bed and every hour when seated in a chair, the use of a pressure-relieving mattress or wheelchair cushion, maintenance of clean and moisturized skin, nutritious meals, and adequate hydration.

A common facility defense in bedsore cases is that the resident was non-compliant in being turned or repositioned, and, thus, the bedsore was unavoidable. Non-compliance by a resident is not a justification for a facility to give up on bedsore prevention but instead should trigger activation of the facility’s “interdisciplinary team” to conduct meetings with the patient, the family, and the doctor, as well as the entire facility health care team, in order to develop written weekly goals that must be set, measured, and reset until the patient is moving forward in a positive fashion. So rather than non-compliance being the end of the discussion, it should be the beginning of a bigger, more urgent discussion that might lead to the prevention of future injury, to the benefit of both the patient and the facility.

In the instance where a bedsore occurred despite all necessary care and treatment being documented by a facility, there are two distinct possibilities. If the resident has a terminal condition such as cancer or AIDS, then the facility may very well be correct that the bedsore was unavoidable. In almost all other situations where the facility’s chart reflects proper care and the resident’s bedsore reflects lack of care, you will have what I call a “liar, liar, pants on fire chart”: a medical chart indicating that all necessary care was provided but a medical outcome telling you this is essentially impossible. This situation also frequently occurs with nutrition and hydration problems, where the chart reflects that the resident is consuming all the necessary food and fluid requirements and yet the resident shows up in the emergency room severely dehydrated and malnourished. If this is your elder’s case, you, too, probably have a situation of false charting.

Conclusion

There are excellent national and state organizations committed to improving elder care in general and investigating specific instances of potential elder abuse. Additionally, I have found that attorneys experienced in this field have been exceedingly generous in their willingness to consult informally on cases as well as to formally co-counsel cases where beneficial.

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