New York Nursing Home Abuse Lawyer Blog

Smithtown Center for Rehabilitation and Nursing Care, located in Suffolk County, received sub-standard ratings from a Department of Health Certification Survey Dated November 2, 2011. Among the several deficiencies noted by the DOH were frequency of meals and providing/obtaining radiology services.

Section 483.35(f) of the CFR dictates that the facility provide three daily meals to residents, with no more than fourteen hours between dinner and breakfast the next day, unless a snack is provided at bedtime, in which case the interval may increase to sixteen hours. One logical reason for this rule is that the facility provides these meals, so the residents eating habits are subject to the staff providing them. Also, as it is the duty of the home to prevent the development of bedsores and infections, a consistent nutritional allowance is a necessity. Hunger can lead to distraction and accidents, which the facility is bound by law to make provisions to avoid. In this instance, residents reported that snacks were not provided on a regular basis by the staff, although these residents claimed feelings of hunger and that they would have readily accepted offered snacks.

For an elderly person, a fracture can have serious, and potentially life threatening, consequences. When a fall with a possible fracture occurs, it is essential to diagnose the results as quickly as possible to ensure that the correct treatment is given and the resident can begin to recover. For this reason, CFR 483.75(k)(1) provides that the facility must obtain radiology and diagnostics for its residents, and that the facility is responsible for the timeliness of obtaining these. In one instance noted in the report, a resident suffered a fall and complained of hip pain. Although an x-ray was ordered immediately, the results of this x-ray were not reported until almost sixteen hours later. As such, the injury, which was an acute right hip fracture, went undiagnosed during this interval. As evidenced by the DOH deficiency report, this lag is unacceptable.

A full list of deficiencies noted by the DOH with reference to Smithtown Center for Rehabilitation and Nursing can be located here.

Woodhaven Nursing Home, a Suffolk County-based nursing home facility, was cited for multiple deficiencies in a Department of Health Survey dated April 27, 2011. Among the violations were failure to have secure handrails in place, and failure to care for the resident in a matter maintaining dignity.

According to CFR 483.70(h)(3), a facility must ensure that corridors have firmly secured handrails on each side. In a facility in which numerous residents are fall risks, and the consequences of such falls are extremely serious, secured handrails are a necessity. The study found that three areas of Woodhaven's first floor were not equipped with handrails. Fortunately this did not result in actual harm for any of the residents. However, the study does note that the potential for more than minimal harm was present.

Section 483.15(a) of the Code specifies that the facility must promote the care of patients in such a manner that maintains or enhances his or her individuality. In three instances of Woodhaven failing to meet this standard, specific instructions for infection control were posted outside a residents' rooms, on some occasions left visible after the patient required such care. The information contained in the signs was plainly visible for other residents or visitors to see. When infections occur in nursing homes, as they sometimes do, it is the duty of the facility not only to treat the infection, but also to treat the resident suffering from the infection with dignity in the process. The DOH felt that Woodhaven failed to do this in these circumstances.

The full transcription of the Department of Health report can be found here.

The Department of Health has fined Mosholu Parkway Nursing and Rehabilitation Center in the Bronx, NY over $55,000 for numerous violations, the most disturbing of which relates to an issue that has been discussed previously on this blog, the failure to keep the facility free of accident hazards. In this particular instance, a resident who was known to be an "unsafe smoker" was severely burned over sixty percent of his body while smoking unsupervised.

According to the facility's own policies, residents are not allowed to smoke unless supervised. This supervision must be maintained during the entire period that the resident is smoking, which is permitted in the "quiet room." At no time are the residents allowed to have their own smoking materials, i.e. matches and cigarettes, but rather these are dispensed by the staff as needed.

On this occasion, the resident is seen on video in his wheelchair moving to and from the quiet room with no supervision. He lights a cigarette on his own with matches that he produces from the side of his wheelchair. At some point thereafter, although not seen on the video, the resident lit himself on fire while unsupervised in the smoking room.

In addition to violating CFR 483.25(h), Mosholu Parkway Nursing Home violated its own policies and procedures in this instance. The staff, however, failed to meet these internal standards. This failure affects not only the resident in question, but also all other residents who are exposed to a fire hazard. A situation such as this can prove to be deadly both for the smoker and for other residents in the event they become trapped in a burning building.

The complete DOH report, including violations for failure to prevent abuse and neglect, and failure to train employees in emergency procedures, can be accessed here.

A study recently released by the Department of Health and Human Services reports that as few as one out of seven Medicare patients harmed by medical errors and accidents during hospitalizations are reported. The study, performed by HHS inspector general Daniel R. Levinson, claims that the primary cause of the under-reporting is that many hospital employees do not understand what would be defined as "patient harm", or these employees do not appreciate that a patient has been harmed. In an effort to correct this, Medicare has stated that it will devise a list of "reportable events," which will be available to hospitals and their employees.

In order to receive payment from Medicare, hospitals are required to report incidents of harm to patients, and make efforts to improve care and eliminate similar events in the future. Even with this stipulation, failure to report errors has been rampant, according to the study's findings. Additionally, Levinson found that even when incidents of harm are reported, such as bedsores, infections or medication errors, hospitals rarely make changes to policies or practices.

The Obama Administration, although it has strongly advocated the reduction of medical errors, has left the power to change this with the states. Additional federal reporting requirements are not being planned at this time.

Website Resource: Report Finds Most Errors at Hospitals Go Unreported, New York TImes, Robert Pear, January 6, 2012

Northern Riverview Health Care Center in Haverstraw, NY was cited in a Department of Health Deficiency Survey dated May 11, 2011. The DOH cited the facility for numerous violations, including failing to ensure that the facility was free of accident hazards, and failure to develop and implement written policies and procedures that prohibit mistreatment and/or neglect.

The Statement of Deficiencies documented incidents involving falls of five residents, with the falls resulting in actual harm to each. In one such incident, a resident was admitted with diagnoses including dementia and ataxia (unsteady gait). The care plan in place for this resident stated that an alarm was to be in use on his wheelchair at all times when the resident was out of bed. Despite this, the resident was discovered on the floor on the evening of February 20th, and it was discovered that an monitoring device was not in place, contrary to care plan specifications. Subsequent to the fall, the facility did not conduct a complete investigation. Additionally, no new interventions were put in place to prevent a repeat incident. As a result, the resident suffered another fall on April 20th while in the dining room, after which the assistant director of nursing stated that, again, a wheelchair monitor was not in place.

Nursing home facilities must ensure that residents receive proper supervision and assistive devices to prevent accidents. Such steps clearly were not taken in the case of this resident. After the initial fall, the facility should have ensured, at the very least, that the original care plan was followed. Despite the actual notice provided of his risk for falls after the first incident, no steps were taken to prevent additional accidents.

As stated above, the facility was also cited for failure to prevent abuse or neglect. This failure was evident for six residents out of a sample of 17. Among the indignities suffered by these residents were: corporal punishment that went without investigation (slaps about the face and head administered by the resident's son; a bruise of unknown origin to a resident's hip (this too was not investigated); and failure to implement proper alarm interventions for a resident known to be a fall risk.

A facility implements a care plan because the staff recognizes a risk of harm or injury due to the patient's physical or mental state. The plan is meant to limit further injury, or help to heal a current condition. The care plan has no effect if it is not implemented, however. In many of the incidents documented in the DOH survey, Northern Riverview recognized a risk, but failed to follow through on its own directives to minimize the risk. These failures resulted in the accidents and injuries above. The full reports, including additional citations and incidents, can be found here.

Registered Nurse, Kathleen Kennedy, an employee at Daleview Care Center in Farmingdale, New York was recently sentenced to five years probation after falsifying records in a resident's nursing home chart. Nurse Kennedy reportedly failed to properly assess a resident (with a history of falls who had previously suffered a fractured hip) after a fall, failed to properly document the fall and later submitted a false statement that she had no knowledge of the fall.

Our firm handles many cases involving residents that have fallen at New York nursing homes due to the failure to properly assess the resident, as well as the failure to create and implement a proper plan of care to prevent falls. It seems that not only did the nurse involved fail to properly assess the resident, she also failed to follow appropriate protocol for documenting falls and decided to lie about it. As in most instances involving document fraud, here the cover-up was likely worse than the "crime".

Long-Term-Care Community Coalition, Enforcement Actions 6/11/11 - 9/15/11.

A certified nurse's aide and her supervisor have both lost their jobs after the aide was accused of beating a developmentally disabled resident at Lily Pond Nursing Home in Staten Island. The supervisor is accused of attempting to cover up the incident. The aide allegedly struck the resident several times in the head during her shift. An EMT witnessed the incident. According to the EMT, the supervisor advised the technician not to report the incident. Both the aide and the supervisor have surrendered their licenses, and both were conditionally discharged by the facility.

Federal and state regulations each mandate that accidents and incidents of abuse in nursing homes must be reported immediately. When coupled with the obvious prohibitions of abuse in these homes, it is no surprise that both the CNA and her supervisor were discharged by the facility. It remains to be seen whether the facility will be found responsible in a civil lawsuit, under the theory that the employer failed to properly train the aide and/or supervisor and/or failed to properly monitor the resident. Nonetheless, this is a disturbing instance of elder abuse, and a reminder that we must remain diligent in ensuring that our loved ones are free from abuse and receiving the level of care that they are mandated to receive from nursing homes and assisted living facilities.

Website Resource: Beating, cover-up at nursing center on Staten Island, www.silive.com , Frank Donnelly, November 29, 2011

A July 27, 2011 DOH Deficiency Survey cited Long Island nursing home Berkshire Nursing and Rehabilitation Center for several shortcomings. Among these deficiencies, the DOH noted a failure to ensure that a resident's drug regimen was free from unnecessary drugs, a violation of Title 42 section 483.25(l) of the CFR.

In this specific case, the DOH discovered that a resident had been prescribed several psychoactive medications. As this resident had been diagnosed with dementia and depression, these prescriptions alone are not abnormal. Prior to prescribing the medications, however, the facility did not properly assess the resident and failed to weigh the potential benefits of alternative treatment. According to the Code, the facility must ensure that residents who have not used antipsychotic drugs in the past are not given them, unless such drugs are necessary to treat a specific condition as documented in the patient's record. Additionally, according to the surveyors, the facility failed to monitor the effectiveness of the medications once they were prescribed.

Other deficiencies documented in this report, such as failure to develop and implement proper care plans and failure to create an activity program meeting individual needs, are in the full DOH report here.

Hilaire Rehab & Nursing, a Suffolk County-based nursing home, failed to meet minimum standards of care in several areas, according to a DOH survey dated June 14, 2011. The DOH gave the facility a one star (out of five possible stars) due to the prevalence of residents with bedsores (pressure ulcers, decubitus ulcers). 21% of residents found to be at "high risk" for developing bedsores had in fact developed a bedsore (the national average in the category is 12%). Among the deficiencies noted was the failure to ensure that the facility remained free of accident hazards and failure to ensure that services are provided by qualified persons in accordance with the care plan.

Title 42 section 483.25(h) of the CFR dictates that a resident must be supervised and provided with assistance devices to prevent accidents. The DOH report details a resident with a history of wandering and barricading herself in her room. Despite this history of barricading, no intervention was in place to prevent the behavior other than 15 minute room checks. As a result, the resident successfully barricaded herself in her room on no fewer than two occasions. The resident, who had a history of dementia and psychotic disorder, also had a roommate. Because of the barricade, the room was not immediately accessible. This could have led to a serious situation/injury had the resident attempted to cause harm either to herself or her roommate. This behavior should have been noted and accounted for in the comprehensive care plan, however it was not, leading to the deficiency rating.

The second deficiency noted above is in violation of section 483.20(k)(3)(ii) of the Code. In this instance, a physician ordered an antibiotic to treat a resident's urinary tract infection, however the medicine was not administered until three days later. The pharmacist stated that the medication was delivered to the home the day following the order. The Director of Nursing conceded that it should not have taken three days to begin administration of the prescription, but little other explanation was given for the delay. Many elderly residents at nursing homes often have numerous prescriptions to take on a daily basis. The staff must ensure that these medications are administered properly. The delay in providing this resident with his or her UTI prescription led to additional pain and discomfort for the resident, and could have resulted in sepsis.

A complete list of Hilaire's deficiencies can be found here on the New York DOH website.

The New York State Department of Health published results of a survey dated June 13, 2011 in which Cedar Lodge Nursing Home, located in Center Moriches in Suffolk County, received substandard results in several areas. Sections 483.75(l)(3) and 483.20(f)(5) of CFR Title 42 discuss standards for record keeping and maintenance. The importance of safeguarding records is further evidenced not just in the codification, but also through the process one must navigate to obtain patient records.

The Health Insurance Portability and Accountability Act (HIPAA) ensures that only an individual or his or her authorized representative is able to gain access to private medical records. In the deficiency report, the DOH noted that personal medical records were being stored at Cedar Lodge in an open area of the basement. The file cabinets and boxes storing the records were not properly locked or secured.The area of the basement housing the records was accessible to maintenance and housekeeping departments. The report did not mention if the records were accessed by unauthorized personnel, but that the files were accessible.

Additional deficiencies in areas such as dietary services, proficiency of nurses aides, and unnecessary use of restraints can be read about on the DOH website.

Petite Fleur, a Sayville, New York based nursing home, was cited by the Department of Health for multiple pressure sore violations in a recently released report. The survey, taken April 9, 2010, detailed a resident whose pressure ulcer (bedsore, decubitis ulcer) went undocumented until it had reached Stage 3. The resident had scored a "15" on the Braden Scale Assessment, indicating a risk for the development of a pressure sore.

Title 42 of the Code of Federal Regulations section 483.25(c) states that "the facility must ensure that (1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates 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."

In this case, the resident was considered "at risk" as determined by on the Braden Assessment. Certainly this does not mean that development of a pressure ulcer is unavoidable. However, due to the risk factors present, the facility should have monitored the resident's skin and put a plan of care in place in order to prevent the development and/or deterioration of pressure ulcers. Failure to chart an ulcer until it has reached Stage 3, at which point there is full thickness tissue loss, is unacceptable. Additionally, the resident had already developed several other pressure sores which should have made the staff more vigilant in the resident's care and treatment.

The complete Department of Health survey can be found here.

Momentum at South Bay, the East Islip based nursing home, was cited in a New York Department of Health deficiency report dated June 20, 2011. The report details numerous citations and violations of policy by the Suffolk County nursing home. The facility was cited for 27 standard health deficiencies. The New York State average number of standard health deficiencies was 17.

Listed first in the report is a violation of 42 CFR 483.20(g)-(j). These sections mandate an accurate assessment of the resident's status, as well as coordination between nurses and health professionals, and certification of the assessments when complete.The report states that according to the facility's Minimum Data Set, "Resident 13" was on a physician-prescribed weight loss program. Documentation of the physician orders contradicted this MDS, however, as there were no physicians orders for weight loss. Ordering a manageable diet in elderly and infirm residents in a nursing home is the responsibility of a physician and/oror dietician. Because these residents must maintain very specific nutritional requirements, a nurse or nurse's aide cannot take it upon him or herself to adjust the diet of a resident. Unfortunately, it appears from the report that this is what occurred at Momentum at South Bay.

A second deficiency noted in the report is a failure to establish an infection control program. This was noted during an unsanitary cleansing of a sacral pressure ulcer. A nurse did not employ adequate sanitation measures while cleansing the ulcer. According to federal regulation, a facility must maintain a program designed to prevent the development and transmission of disease and infection. When dealing with pressure ulcers, this is even more essential than normal. Because they are open wounds, pressure ulcers have a predisposition to infection. Failure to perform any and all necessary sanitation precautions prior to cleansing the wound or changing dressings may lead to an increased risk of infection, or the exacerbation of an infection already present. This in turn may lead to further infection, sepsis, and death.

The above are only two of the deficiencies noted by the DOH in its report. Click here to access its findings in their entirety.

The New York State Department of Health recently published the results of a July 19, 2011 certification survey for Nesconset Center for Nursing and Rehabilitation located in Suffolk County, New York. The Department's findings were not positive for the home, noting that the facility was deficient in no fewer than nine areas.

Among the areas in which the facility was found deficient was 42 CFR 483.25(h). According to this provision of the CFR, the facility "must ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents." In the occurrence leading to this citation, a resident with a history of falls was observed sitting in a chair without a chair alarm. The resident's care plan documented chair alarms as an intervention. More striking than the simple lack of a chair alarm is the fact that the resident had already fallen four times since his admission to the facility. Elderly individuals with dementia, one diagnosis of this particular patient, are always at risk for falls. Failing to implement the interventions recorded in the care plan to prevent falls is a clear violation of the resident's rights.

The facility was also cited for deficiencies in developing and reviewing a plan of care, and proficiency of nurses aides, among other shortcomings. The Department of Health survey, detailing all citations, can be found here.

Bellhaven Center for Rehabilitation and Nursing Care in Brookhaven, New York was found deficient by the DOH in a number of areas, according to a survey of August 8, 2011. The areas receiving less than adequate marks were clinical record keeping, accident reporting, proficiency of nurses aides, and avoidance of unnecessary catheterization.

As is often the case in these DOH deficiency reports, the study references Title 42 of the CFR. Section 483.75(l)(1) states that the facility must maintain complete clinical records for each patient, in accordance with accepted professional standards and practices. The study details two incidents at Bellhaven in which physicians ordered medication for residents, however there was no documentation that the medications were actually administered to the patients. Proper record taking is essential to the safety and well-being of nursing home residents. Quite often, a resident is unable to communicate accurately with a member of the staff. Failing to document what type of medication is administered to a patient, as well as when and where such medication was administered can lead not only to sloppy records, but sickness or death for the patient.

Section 483.10(b)(11) of the Code makes clear that: "[A] facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is an accident involving the resident which results in injury and has the potential for requiring physician intervention." In the incident cited by the report, a resident was scheduled for a dermatology appointment. Not only was the resident's family not informed of this appointment, the resident herself was never picked up to attend the appointment. The patient was not told why the appointment was missed.

In most, if not all cases, an individual is placed in a nursing home because he or she no longer has the full ability to care for him or herself. In such cases, it is a necessity to maintain open and clear lines of communication both internally within the facility and externally to family members or legal guardians. Failure to do so is unacceptable, and can lead to dire consequences for the most vulnerable member of the equation: the patient.

The entire DOH report can be found here.

In a certification survey from January of this year, the Department of Health cited Suffolk Center for Nursing and Rehab, a Patchogue, New York nursing home, for multiple deficiencies. Included in the DOH report were lack of proficiency of nurse's aides, and failure to ensure that residents are free from medication errors.

The survey found the facility deficient with respect to Title 42 Section 483.75(f) of the Code of Federal Regulations, Proficiency of Nurse's Aides, when it was discovered that a resident with a known history of falls was left alone in and around the shower. Fortunately, the resident did not fall on this occasion. However, the CNA admitted that he was aware of the resident's fall history and still left him alone in order to get supplies. A resident with a history of falls should never be left alone while mobile, particularly in an area as precarious as a bathroom or shower. Clearly this behavior by the CNA showed a lack of competency in caring for such a patient.

Section 483.25(m)(2) of the Code mandates that the facility must ensure that residents are free of any significant medication errors. In the incident documented in the report, medications were not received as ordered, and in one case the facility did not ensure that the resident actually took her medication. In an environment in which residents are on a very strict regimen of medication, coupled with the fact that many residents are unable to care for themselves, this behavior on the part of the facility is unacceptable. As the survey notes, instances such as this have the potential for more than minimal harm.

The entire list of deficiencies is too numerous for a single entry. A copy of the Detailed Deficiency Report can be found at the DOH website, here.