New York Nursing Home Abuse Lawyer Blog

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.