New York Nursing Home Abuse Lawyer Blog

A Department of Health (DOH) study regarding the 2008 elopement of a 59 year old woman at Fieldston Lodge Care Center in Riverdale, NY found the facility's measures to prevent such wanderings lacking. The patient, identified in the report as "Resident # 1," entered the facility in November, 2007 with diagnoses ranging from Hypertension to paranoid Schizophrenia. Upon admission, the facility recognized that Resident # 1 was an elopement risk, both through its elopement risk assessment tool and the Comprehensive Care Plan. She was fitted with a wanderguard, among other standard interventions for elopement

Fieldston documented that Resident # 1 grew increasingly anxious about leaving the facility and returning home. Her score on the elopement assessment tool increased as well. Despite these warning signs, Fieldston implemented no additional interventions or monitoring. On August 16, 2008, Resident # 1 left the facility of her own volition. Not until August 19 did three staff members finally find the resident in her apartment building. Luckily, she was not seriously injured.

The Code of Federal Regulations and the NY Public Health Laws have very specific requirements to ensure the safety of residents and the prevention of neglect on the part of the facility. The Department of Health cited two relevant sections in its write-up of Fieldston. Title 42 Section 483.13(c) of the Code of Federal Regulations states that "[t]he facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property." Additionally, Title 42 Section 483.25(h) sets forth that: : "The facility must ensure that (1) The resident environment remains as free of accident hazards as possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents." The DOH cited each of these sections in its deficiency report for Fieldston. In a situation fraught with risk as in the case of Resident # 1, the Department of Health demands that a certain standard of care be maintained by the facility with respect to the patient. In this case, the department obviously felt that this standard was not met.

Website Resource: Department of Health

Medicaid fraud investigators filed a civil suit against New York City government this past Tuesday, January 11, 2011. The suit claims that city officials green-lighted round the clock in-home care for thousands of elderly New Yorkers, many of whom were in need of nursing home care. In normal cases, to justify twenty-four hour care, recommendations are required from a patient's doctors and nurses. The suit alleges that in many of the cases in question, this step was overlooked or ignored by the city.

Due to the increased cost for twenty-four hour, in-home care, Medicaid claims that these patients accrued additional costs of millions of dollars, unnecessary spending in its opinion. It will be up to a federal court to decide whether this alleged mishandling of patient appropriation indeed amounts to fraud, or if The City was in fact in the right by approving the in-home care.

Website Resource: As New York City Defends Medicaid Approvals, Fear of Suit's Fallout Grows New York Times, Anemona Hartocollis, January 12, 2011

A New York State Department of Health certification survey dated April 8 of last year cited Northern Riverview Health Care Center, located in Haverstraw, NY, for failure to provide proper treatment to prevent/heal pressure sores (bedsores, decubitis ulcers). The findings discuss the development of pressures sores in no fewer than five residents of the facility.

The findings detail a pattern of miscommunication between physicians, nurses, and nurse aides throughout the facility. One resident, referred to in the survey as Resident #18, was admitted to the facility on Christmas Eve, 2008 with risk factors noted for the development of pressure sores, although the resident's skin was intact at the time of admission. Although the resident was confined to a wheelchair, no evidence was readily available to prove that interventions were taken to prevent pressure ulcers to the resident's buttocks. As a result, the resident did, in fact, develop a Stage I pressure ulcer on the left buttock on or around November 15, 2009. Over the next two and a half months, through February 2, 2010, the ulcer deteriorated to a Stage IV pressure ulcer. This is a violation of 10 NYCCR 415.12(c)(2), which states that a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.

Unfortunately for both Northern Riverview and its residents, Resident #18 was not the only occupant to experience the development and/or exacerbation of pressure sores. Delays in diagnoses, incomplete/unfollowed care plans, and unapplied interventions led to the development of pressure sores in at least four other residents at the facility.

Northern Metropolitan Nursing Home in Monsey, New York was recently cited by the New York State Department of Health for incidents involving residents that developed pressure sores (decubitus ulcers, bedsores) in late 2009. According to the statement of deficiency, inspectors discovered that three out of twenty-one residents surveyed developed pressure sores at the facility. Although the residents were "at risk" for pressure sores, care plans and preventative measures were either not in place, or deficient, in ensuring that the sores did not develop.

One of the residents surveyed was readmitted to Northern Metropolitan on September 2, 2009 with a Stage II pressure ulcer on the sacrum and by December 7, 2009 two more ulcers on the hip and scapula (upper back) had developed. Another resident was readmitted on March 2, 2009 and by August 3, 2009 had developed a Stage IV (the most severe) pressure ulcer on the right Ischium (hip area). In the third case, although a patient was admitted on October 15th, 2009 with noticeably red heels, an individualized care plan was not implemented until November 4th. The resident subsequently developed a Stage II pressure Ulcer. Two of the three patients also experienced significant weight loss.

The actions of Northern Metropolitan are in direct violation of New York Codes, Rule and Regulations, specifically 10 NYCRR 415.12(c). A facility must ensure that all reasonable measures are taken to prevent pressure sores. In the event that a sore is present upon admission or develops despite appropriate measures, a facility must take all reasonable steps to treat existing sores and prevent new ones from developing. Despite the risk factors of these patients, Northern Metropolitan failed to adhere to the standard of care designated by law. This is no doubt a frustrating scenario for both the residents and their families, as with the proper interventions, these sores were, in all likelihood, avoidable.

The facility was also cited for failing to provide services in accordance within accepted parameters of nursing practice.

Website Resource: New York State Department of Health

Pine Valley Center for Rehabilitation and Nursing in Rockland County recently received a statement of deficiency for failing to properly prevent and heal pressure sores. An 80 year old woman was admitted to the facility on May 26th of last year. Upon her admission, the facility noted that she was at "high risk" for the development of pressure sores. Despite the risk factor, however, the facility failed to implement proper interventions to curb the development of pressure sores. As a result, the resident developed a Stage II pressure sore on her right heel.

According to the New York Codes, Rules and Regulations (10 NYCCR 415.12(c)), Based on the comprehensive assessment of a resident, the facility shall ensure that: (1) a resident who enters the facility without pressure sores does not develop pressure sores unless he individual's clinical condition demonstrates that they were unavoidable despite every reasonable effort to prevent them; and (2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. The facility's failure to develop a care plan or preventative measures led to the resident developing a pressure sore. This is a deviation from acceptable standards of nursing practice, as well as a violation state and federal statutes.

Website Resource: New York State Department of Health

The revised Medicare regulation to be released by the Obama administration will no longer include end-of-life planning with annual physical examinations. Although no longer covered, a White House official made sure to say that the amended regulation "should not affect beneficiaries' ability to have these voluntary conversations with their doctors." Thus, while many will still see these discussions as a necessity when determining a personal course for end-of-life, such conversations will no longer be covered under Medicare.

With all of the attention that health care reform has garnered from both the public and private sector, this issue will certainly spark debate, both pro and con. Ultimately, end-of-life care is a very personal discussion between doctor and patient. Regardless of Medicare funding, it will certainly remain an integral part of medical planning for many Americans.

Website Resource: U.S. Alters Rule on Paying for End-of-Life Planning New York Times, Robert Pear, January 4, 2011

A recent study by Cornell University has found that elder abuse is far more pervasive than reported cases would indicate. The study indicates that shockingly low percentages of elder abuse are actually reported to authorities. In cases of general elder abuse, only 4.3% are brought to the attention of authorities. Financial abuse is reported approximately 2.3% of the time. Incidents of general neglect are made known in a staggeringly low 1.7% of cases.

.Entrusting the care of an elderly loved one to a third party is an intrinsically difficult decision. Even with the proper amount of research, elder abuse is an unfortunate reality that too many families are forced to deal with. The lawyers at Gallivan and Gallivan are trained to help families through these trying situations. If suspected elder abuse has occurred, please contact us to help make the situation right.

Website Resource:

Fraction of Elder Abuse Cases Reported, Study Finds The Sacramento Bee, Anita Creamer, January 5, 2011

Gold Crest Nursing Home on Bruner Avenue, Bronx, NY has received a one out of five star rating (the lowest possible rating) from the Centers for Medicare and Medicaid Services (CMS). The rating is based on a combination of data compiled regarding each nursing home's performance during a health inspection, staffing, and quality measures. Analysis is conducted by CMS on these three data sources and each of these ratings were combined into one overall rating.

Gold Crest received one star for its poor performance on its health inspection and one star for staffing. The facility was given a three star rating based on data compiled regarding various quality measures. That said, CMS reports that 19% of resident's at "high risk" for developing pressure ulcers (bedsores, decubitus ulcers) actually developed such ulcers. This is in comparison to the state average of 13%.

The total number of licensed nurse staff hours per resident per day was 46 minutes in comparison with state and national averages of 1 hour and 24 minutes. The total number of CNA hours per resident per day was 1 hour and 47 minutes in comparison to state and national averages of approximately 2 hours and 20 minutes. This is particularly important because nursing aides reportedly provide between 80 - 90 % of care to residents, including such basic care as bathing, feeding, re-positioning, etc.

Understaffing is one of the leading causes of neglect or abuse in NY nursing homes. Oftentimes, nurses and nursing aides are genuinely good people trying to do the best job they can. Unfortunately, however, they face an impossible task - providing a daunting amount of care to too many residents due to short-staffing. In these instances, we believe the bulk of the responsibility for avoidable poor outcomes in nursing homes are the direct result of the administration's failure to hire and train an appropriate number of nurses and nursing aides.

Website Resource:

Medicare, Nursing Home Compare, Gold Crest Nursing Home