Nursing home and home health care neglect concerns a health care provider's failure to provide specialized or basic elder and medical care services that causes injury to a person. Eldercare neglect overlaps with the principles involved in medical malpractice. Prosecuting a nursing home neglect case often requires extensive knowledge of skilled nursing facilities (nursing homes) and home health care federal and state regulations, general and specific nursing home standards and procedures, and an intimate understanding of nursing home administration in order to achieve the best results for clients and their loved ones.
THE UNFORTUNATE REALITY OF NURSING HOME NEGLECT
Although the federal Nursing Home Reform Act of 1987 substantially improved the rights of nursing home residents, and increased oversight of medical and financial activities of nursing homes across the nation, the overall quality of nursing home care still remains abysmally poor when carefully looked at. In 2014, the state of Virginia was ranked 39th of 51 districts and received a "D" grade according to NursingHomeReportCards.com.
In February 2014, the Office of the Inspector General in the federal Department of Health and Human Services issued a report titled "Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries " (adverse events defined as "harm resulting from medical care"). The report stated that 22% of Medicare Skilled Nursing Facility (SNF) residents who were admitted for post-acute care (temporary rehabilitative care) for less than 35 days experienced an adverse event during their stay; another 11% experienced "temporary harm events" (events that required intervention but no lasting harm) during their stay; and that physician reviewers determined that 59% of these events were clearly or likely preventable. This means that more than 1/3 of Medicare-recipient nursing home residents were harmed during their stay in a nursing home while they were there temporarily to recover from an illness or other condition.
Given the Affordable Care Act's pressure on hospitals to transfer patients out and into skilled nursing facilities, and increasing numbers of nursing homes closing while expanding current nursing homes to include more beds, already understaffed nursing homes are likely to experience overwhelming admissions that will further contribute to the deterioration of quality health care.
NURSING HOME RESIDENT RIGHTS
Both under federal and state law, nursing home residents have rights to protect their dignity and safety. Virginia's resident rights ("assisted living facilities" include nursing homes under Virginia's legal definition) are effectively the same as the federal rights . In most situations, these rights can be enforced by complaining to the nursing home, or contacting your local ombudsman to advocate on a resident's behalf.
Future residents and their families should research the nursing home(s) that the resident is expected to attend. Nursing homes that receive Medicare/Medicaid funding (the vast majority of nursing homes do) are subject to inspections to assure compliance with federal and state nursing home standards. Results of these inspections are publicly available online and can be compared against other local nursing homes.
It is important that family and friends visit a loved one in a nursing home often, and make sure that he is being well taken care of. The nursing home staff is required to document all instances of care provided, including routine check-ups. Visiting family and friends should review the nursing home's bed chart, as well as assess the resident themselves for any physical, emotional, or mental changes in their condition. It is common for bruises, pressure sores, and other apparent injuries to appear on a resident though not recorded by nursing staff. Failures to record are often due to insufficient nursing staff available to monitor and check up on a resident as required by the resident's care plan, or that the check-up was performed so quickly and carelessly that the nurse did not even look at the patient's skin condition.
Once a family member discovers a change in the resident's condition, it is important to notify the nursing staff immediately and document the event in writing with the nursing home. This means that after the nursing home is told about the family's concerns, a polite letter (keep a copy) or e-mail should be sent to the nursing home staff soon afterward stating the facts and circumstances surrounding the apparent injury. By providing complaints in writing to the nursing home, there will be evidence that the nursing home was notified of the problems with its care, and will be pressured to improve healthcare quality of the complaining resident.
NURSING HOME AND HEALTH CARE AIDE NEGLECT CASES
When a loved one is harmed as a result of nursing home or health care aide negligence, it is important for a family to not only discuss their concerns and grievances with the negligent party, but to consider speaking with an attorney, especially if the care does not improve significantly. Our office knows that most nursing home and home health care negligence cases are brought by family members who want justice and improved health care for injured family members, and to ensure that the defendant(s) do not commit malpractice on other patients. Health care agencies who are subjected to meritorious lawsuits should learn that the appropriate solution to lawsuits based on negligent health care quality is to improve their health care quality standards through additional staffing, appropriate training, and establishing patient health care quality as the primary focus instead of profit.
Residents and their families should know before consulting an attorney a little about how these cases often proceed. Some health care agencies have a penchant for falsifying records when a lawsuit appears likely. It is very important that before a lawsuit is filed that the family obtain as full a copy of the injured family member's medical and health care agency records as possible from the defendant(s) because this copy often will conflict with later records obtained from the defendant(s) during discovery after someone doctors the original.
Families should also be aware that these cases often require some time to commence or prosecute depending on the status of the plaintiff. If the injured family member passed away before or passes away during the litigation, a person must be appointed to represent the estate of the decedent. These appointments may take some time and can delay a case until a person is appointed as the estate's personal representative. Although most families who sue health care agencies on behalf of decedent-plaintiffs do so primarily for the sake of justice, family members should also be aware that the proceeds of any settlement or award at verdict will be subject to distribution however the estate is to be distributed (according to the will or by intestacy laws). Additionally, these cases often involve malpractice and require expert witnesses to support the case before it can be filed.
If you or a loved one would like to discuss a potential nursing home or health care aide negligence matter, please contact our office.