New York Nursing Home Abuse Lawyer Blog

A January 31, 2011 survey inspection conducted by the NYS Dept. of Health resulted in numerous deficiencies at Cayuga County Nursing Home, an upstate New York long-term-care facility. More recently, the facility was cited for 40 standard health deficiencies (statewide average is 17) in July 2011. The specifics of the July survey are not yet available online. The most glaring findings in the January 31, 2011 report involved the facility's failure to prevent accidents and falls, the development of bedsores (pressure ulcers, decubitis ulcers) as well as its failure to maintain accurate clinical records.

With respect to the bedsore deficiency, the surveyors found the nursing home failed to prevent the progression of a heel ulcer that resulted in severe pain to an anonymous resident. More specifically, the surveyors found that the facility:
- did not develop and implement a preventive, pressure-relieving comprehensive care plan related to the need for turning and positioning the resident while in bed, or in her wheelchair; the need to float the resident's heels off the bed, and the need for the resident to wear heel protectors;
- did not assess the cause of the resident's pressure ulcers to prevent the recurrence of skin breakdown and promote timely healing; and
- did not ensure pressure relieving foot care measures were consistently implemented to promote healing of the resident's left heel pressure ulcer.

In the event that you or a loved one has developed a bedsore, please contact the New York Bedsore Attorneys at Gallivan & Gallivan for a free initial consultation.

In May 2011, the Supreme Court, Appellate Division, Second Department affirmed a decision by the Trial Court in Rockland County compelling a defendant nursing home to disclose certain information regarding patients that were not parties in the lawsuit. Plaintiff-decedent had suffered pressure sores and a leg fracture, allegedly caused by the negligence of the facility. The plaintiff had requested information of other residents, including names and dates of admission purportedly in order to identify witnesses to the alleged neglect.

Because the plaintiff was not seeking medical information, and because the Court deemed the information necessary to the case, the Court ruled that the information was not protected under CPLR 4504(a). Additionally, the Appellate Court reasoned that due to the numerous services offered by nursing home facilities, information such as names, addresses, and room numbers could not reasonably be used to ascertain a resident's particular affliction--information that would be protected under CPLR 4504(a).

Although plaintiff was initially seeking the information for each and every resident during the plaintiff-decedent's stay at the home, the Court limited the disclosure to a two-month period, and to residents within the plaintiff-decedent's particular unit.

Website Resource: Olkovetsy v Friedwald Ctr. for Rehabilitation & Nursing, LLC (2d Dept. 2011).

A recent study conducted by the University of Iowa revealed that black nursing home residents are more likely than their white counterparts to develop bedsores (pressure ulcers, decubitis ulcers). In a five year study conducted at nursing homes throughout the country, researchers found that black residents were roughly five percent more likely to develop decubitus ulcers than white residents. Although the study does not promulgate definitive conclusions as to the cause of this discrepancy, several factors could be at play. Lack of funding, substandard training, and understaffing at predominantly black homes are potentially all contributing factors. Medical factors, such as diabetes, may also play a role. According to the American Diabetes Association, blacks are more likely than whites to be diagnosed with the disease.

Underqualified or insufficient staffing is a problem endemic to the nursing home industry. For reasons such as pay scale, stress, or insufficient screening during the hiring process, it seems that many of the problems that arise out of nursing homes are caused by poorly trained or over-worked staff. Regardless of the cause of these issues, however, it is a patient's right to be cared for by a competent, knowledgeable staff. As Title 42 (Public Health) of the Code of Federal Regulations states in Section 483.20(k)(3)(ii), "[T]he services provided or arranged by the facility must be provided by qualified persons in accordance with each resident's plan of care." This right provided by the Code is guaranteed to residents of any race or skin tone. And although, as evidenced in the study, the rate of pressure ulcer cases does seem to be in moderate decline nationwide, the discrepancy between black and white residents is one that should be addressed further to ensure that such cases continue to decline across all races.

Website Resource: Blacks in nursing homes have higher risk of sores

Reuters, Genevra Pittman, July 12, 2011

An investigation conducted over the past year by The New York Times highlights disturbing trends of abuse in group homes run for the mentally challenged and developmentally disabled. The emphasis of the survey, the lack of discipline imposed upon delinquent employees of such homes, underscores the importance of diligent oversight by not only authorities, but also families of the residents of these homes.

While this blog often focuses on neglect, the Times survey examines the aftermath of proactive abuse on residents of group homes. The report documents the cyclical nature of the abuse, with employees being transferred to other homes after violent, often criminal, incidents rather than facing actual sanction, dismissal, or criminal charges. This can be credited to lack of resources, diminished capacity and inability of residents to explain the circumstances of abuse or simply apathy from administration. Regardless of cause, however, the graphic depictions of physical, sexual, and emotional abuse cited in the Times investigation are less disturbing than the lack of repurcussions for those accused of these actions.

The report goes into case-specific information of several cases of abuse, transfer, further abuse, transfer, etc. The idea that employees at these homes are under-trained, under-paid under-motivated, and over-stressed does not excuse overt abuse. Inattention to this abuse makes administrators and supervisors complicit. While the report does not offer a comprehensive solution to the ongoing issue of group home abuse, making it known to the public is a good first step. Administrations of homes, law enforcement, and the judiciary must be more conscientious in enforcing the legislation put in place to protect group home residents, as they would protect any other vulnerable member of our society.

Website Resource: At State-Run Homes, Abuse and Impunity

New York Times, Danny Hakim, March 12, 2011

A deficiency report published by the Department of Health on April 25, 2011 reveals that Elant at Newburgh, located in Orange County, NY, continues to violate patients' rights with respect to its nursing home residents. The latest findings by the DOH range in scope from isolated incidents to patterns of abuse, and most have been labeled as having the potential for more than minimal harm.

This blog has documented health code violations arising from Elant at Newburgh in the past, including failure to prevent bedsores and failure to properly staff the facility, both of which are again included in the current survey. This latest report from the DOH adds several new violations of Title 42 of the Code of Federal Regulations.

• 483.25(l): Each resident's drug regimen must be free from unnecessary drugs. A resident was given additional pain medication to cope with leg pain. Although the resident stated that the medication was ineffective in reducing the amount of pain she was feeling, the pain medication was not monitored consistently, nor was documentation made of the medication's ineffectiveness.

• 483.65: Facility establishes infection control program. A catheterized resident with a history of urinary sepsis did not receive proper treatment of the catheter. As a result, the resident developed a urinary tract infection.

• 483.25(h): Facility is free from accident hazards. A resident, although noted to be monitored for aspiration was allowed to eat a meal unsupervised in her room. Although, by all accounts the Certified Nursing Assistants were aware of the resident's condition, the resident was not required on this occasion to eat in the dining hall, as had been prescribed. A resident such as this is a choking risk. Allowing her to eat alone in her room could have proven fatal. Thankfully in this case, it did not.

The DOH survey documents further violations, too numerous to list exhaustively here. As has been noted in this blog, this section of the CFR is in place to ensure the safety and dignity of residents of long term care facilities. Violations of these statutes fly in the face of not only common sense, but also federal regulations ratified for the residents' protection. Perhaps soon, facilities such as Elant will recognize this and adhere to the rights that they guarantee, under law, to their long-term residents.

According to a New York State Department of Health Deficiency Survey released recently, a Certified Nurse Assistant (CNA) at Fieldston Lodge Care Center in the Bronx broke an elderly resident's arm in January of this year. Reportedly, the CNA was attempting to perform incontinence care on the female resident. When the resident resisted, claiming that she did not need the care at that time, the CNA grabbed the resident by the arm and twisted, causing a fracture of the distal ulna joint.

The allegations set forth by the resident are quite disturbing. Equally, if not more disturbing, is the manner in which the facility itself handled this situation. The alleged incident occurred on the afternoon of Sunday, January 2nd. There was no documentation of the occurrence in the January 2nd Daily Patient Care Report. Furthermore, although a different nurse responded to the resident's cries for help, an x-ray, the results of which displayed the fracture, was not ordered until the following morning.

Title 42 of the Code of Federal Regulations, section 483.25 states that "Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being." Additionally, section 483.13(b)makes clear that "The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion." Certainly, if the resident's allegations are true, the facility is in direct violation of these provisions of the Code. The Code guarantees the rights of residents of nursing homes and assisted living facilities. Incidents such as the one documented above, while unfortunate, reinforce the necessity of maintaining the highest levels of staffing at such homes, in order to prevent future episodes from arising.

NYS DOH Survey, Fieldston Lodge Care Center, March 12, 2011