Articles Posted in Miscellaneous

In March, 2013, the Supreme Court, Nassau County decided that a delay of roughly one and a half years in appointing an Administrator did not prejudice the defendants to the extent that they could not defend a nursing home negligence/malpractice action. Abdul Hasan, the named plaintiff in the complaint, died approximately two months after plaintiffs filed their pleadings. Because of Hassan’s death, it was necessary to substitute a plaintiff to continue the action. As Hassan died intestate (without a will), this substituted plaintiff would necessarily be the Administrator if his estate. Due to complications with the petition, or application, for Letters of Administration, plaintiffs were unable to have a representative appointed until about eighteen months after Hasan’s death.

The co-defendants, a Nassau County nursing home and a Nassau County hospital, argued that this delay severely prejudiced their ability to defend the action. They claimed that plaintiffs had been uncooperative; that the decedent had not been deposed; that discovery had been delayed; and that witness memories had faded to the extent that they would be unable to recall the circumstances underlying the complaint. In response, plaintiffs argued that they were unable to adequately complete discovery without the benefit of a representative of the estate; that they could, at the time of the decision, complete such discovery; and that the defendants had failed to meet their burden of showing prejudice. In its Decision for the plaintiffs, the Court noted that plaintiffs could not have acted without a legal representative of the estate, and that defendants merely showed delay, not prejudice. The Court ordered a preliminary conference to move forward and facilitate the discovery process.

Often in nursing home negligence actions, the individual who suffered the injuries is deceased. In these situations, a personal representative of the decedent’s estate must be appointed for the action to continue. The case described in this post involves an Administrator, the name for a personal representative appointed when the decedent did not have a will (as opposed to an Executor, who would be named within the decedent’s last will and testament).

Selecting a nursing home for your loved one is a difficult decision. It is not easy to trust someone else or a stranger to meet the needs of your mother, father, spouse, or family member. Here is a list of factors you should consider when picking the right living arrangement and nursing home for your loved one.

1. Assess the Needs of Your Loved One

oldman.jpgBefore choosing a nursing home, it is best to understand the needs of the elderly person. Take into consideration your loved one’s medical conditions and the level of care required. You don’t want to assume that the nursing home or living facility has the right services, staff, medical equipment, or expertise to care for the individual. You’ll want to make sure that the nursing home has the required necessities to meet the needs of the person.

Parkview Care and Rehabilitation Center, a nursing home in Massapequa, Long Island, was cited in an April Department of Health certification survey for nineteen deficiencies. The most serious of these deficiencies resulted in “actual harm” to a resident. A finding of actual harm is the second most serious level of severity that the DOH assesses to a nursing home during a certification survey.

chest.jpgThis most serious incident involved a failure to promptly notify an attending physician of the radiology findings for a resident of Parkview. Because the resident was exhibiting symptoms of pneumonia, a chest x-ray was ordered. The physician was not notified of the results, or lack thereof, of the x-ray until four days after it was taken. Nursing notes for the time between the performance of the x-ray and the and the resident’s transfer to the hospital indicate that the nurses did not check the resident’s breathing, despite the symptoms of pneumonia that had prompted the physician order for the x-ray. When the physician finally received the x-ray four days after it was performed, he became aware that the patient was suffering from a collapsed left lung. The attending immediately ordered a transfer to the hospital, where the resident was treated for his condition.

In an interview with the DOH, the attending physician indicated that it is incumbent upon the radiology department to notify him immediately of any abnormalities or dangers indicated in the x-ray. Radiology did not adhere to this protocol in this instance.

A study recently reported in the NY Times found that consumer satisfaction ratings for nursing homes do not always match up with the ratings given to facilities by their residents and their families. The largest disparity occurred with respect to facilities rated at the highest level (five stars) on Medicare’s Nursing Home Compare website. Although one would expect that a facility rated five out of five stars would have excellent satisfaction rates, the survey found otherwise. In many cases, residents expressed very low satisfaction rates at these nursing homes that Medicare had rated at the top of the list. Often, these residents’ families felt the same.

In the Times’ investigation, it was discovered that this discrepancy may be due to differing expectations between Medicare, who ranks the nursing homes, and residents and their families, who deal with everyday life within the facility. While Medicare primarily looks to factors such as infection rate, pressure ulcers/wound care, and medication errors, resident and their families, many of whom are unaffected by these deficiencies, look more to quality of life and dignity within the facility.

Consideration has been given to using feedback from residents and their families into the Medicare rankings, although that has not occurred yet. While it would enable a fuller view of life within nursing homes, the added cost has to be justified to implement such a program. In the meantime, a lesson to be learned for anyone contemplating placing a loved one in a nursing home is to take the Medicare ratings for what they are: accurate measurements based upon the criteria studied, but not necessarily a complete picture of life within a particular nursing home.

According to a February 2014 New York State Department of Health Inspection report, the Katherine Luther Residential Health Care & Rehabilitation center, a 280-bed nursing home located in Clinton, New York, failed to respect the dignity of patients and did not follow proper procedures to prevent infections. In one instance, a resident suffering from dementia, osteoporosis and COPD was observed eating oatmeal with her bare hands. The resident, who needed help with her personal hygiene, wiped the oatmeal in her hair and on her clothes. After sitting for three hours with dried food in her hair, the resident finally got the attention of a CNA who simply brushed the oatmeal from the patient’s clothes and hair. When asked about the incident, a supervising nurse stated that the CNA should have immediately washed the patient’s hair and changed her clothes.

gauze.jpgIn another instance, a resident who suffered from dementia, anxiety and depression was observed sitting in the hallway with dried blood between his nose and lip. The patient’s care plan mandated that staff members monitor the resident because he was at risk of bleeding due to his anticoagulation medication. However, while the elderly resident sat in the hallway with dried blood on his face, staff members ignored him; one CNA said “hi” to the patient and kept on walking. When asked about the incident, a supervising nurse stated that the CNA should have stopped to clean the man’s face. In addition, the CNA should have asked a nurse to assess the man’s condition to ensure that the bleeding had stopped.

The facility was also cited for incidents in which staff members failed to follow policies to prevent infections. For instance, one resident had developed a stage II pressure sore. While eating in the dining room, inspectors for the DOH observed that the resident’s wound dressing had fallen off. A nurse stated that she would replace the dressing as soon as the patient was done eating. The nurse did not change the dressing until two hours later. When she finally did change the dressing, the nurse touched a floor mat in order to move it. She then touched the sterile gauze that was going to be used to clean the wound with the hand she used to touch the dirty floor mat. The inspector told her to change her gloves and find a new piece of gauze. The nurse later stated that she should have changed the dressing sooner, and that she should have changed her gloves and the gauze after touching the floor mat.

wheelchair4.jpgAccording to a New York State Department of Health citation report, staff members of the Suffolk County Center for Rehabilitation and Nursing center, a 10-bed nursing home located in Patchogue, Long Island failed to monitor a patient who was found dead in a bathroom with a seatbelt around his neck. The report indicated that the patient, who had turned blue, “was found unresponsive without pulse and respiration–no sign of life.” The resident, who suffered from dementia and was required to wear a seatbelt in his wheelchair, was trying to get out of his wheelchair in order to use the toilet. However, while attempting to slip under his seatbelt, the restraint became wrapped around his neck, strangling him to death.

Investigators reported that because the patient had a history of wandering, his care plan required that he wear a seatbelt in his wheelchair. If the patient tried to undo the seatbelt, an alarm would sound. In addition, his care plan required that an assigned staff member check on him every 15 minutes and document that the check was performed. On July 15, 2013, a certified nursing assistant was assigned to watch the patient. At 1:15 p.m., the CNA left the resident in the dayroom which was being monitored by another staff member. The CNA told investigators that he thought that the dayroom supervisor would watch the resident.

At 1:28 p.m., the patient was caught by a surveillance camera wheeling himself out of the dayroom and a nurse placed him in front of the nursing station. The nurse stated that he was unaware of the fact that the resident needed to be monitored every fifteen minutes. At 1:33 p.m., video footage showed the resident wheeling himself towards the bathroom, which staff members claimed to have locked. At 2:12 p.m., another resident of the facility found the patient in the bathroom with the seatbelt around his neck. After the resident alerted staff members, a code blue was called. At 2:20 p.m., a nurse practitioner noted that the resident had died. The DOH report concluded that staff members failed to follow the patient’s care plan by not monitoring the resident every 15 minutes.

Seven elderly residents of the Prospect Park Residence, a 120-bed assisted-living facility in Brooklyn, New York, filed a lawsuit in May 2014 to prevent the facility from shutting its doors in June 2014. The lawsuit, filed in State Supreme Court in Brooklyn, is seeking a preliminary injunction and a temporary restraining order to delay the facility’s closing. The lawsuit claims that the owner of the facility, Haysha Deitsch, and the Department of Health did not give the residents adequate time to move and are not helping them find new places to live. The suit further alleges that the owner mislead them by accepting new residents while he was talking to the Department of Health about shutting the site down. In addition, the residents are complaining that the facility is cutting back on essential services and that many of the staff members are leaving. Families of some residents stated that they plan to file a separate lawsuit seeking damages.

On March 5, 2014, managers told the residents that the facility is closing and that they have 90 days to move. However, family members of residents suffering from Alzheimer’s and Parkinson’s disease said that they haven’t been offered any help to find new residences for their loved ones. In addition, family members pointed out that moving, especially on such a short notice, is stressful for seniors suffering from illnesses. One family member stated, “Any move will be extremely traumatic for my mother and will sever her ties to important services and support groups. We have not been able to find an alternative residence for her.”

Paul Larrabee, a spokesperson for the owner, stated that the building is becoming too costly to run and maintain. He said, “Despite concerns to the contrary, the closure plan and the transfer of residents to alternate living arrangements has been compliant and seamless. Any claims of deception or fraud are without merit and we will vigorously defend our actions.”

What is the Nurse Aide Registry?

According to various federal and state laws and regulations, states must create and maintain a nurse aide registry that is available to nursing homes and the general public. The registry must contain the following information:

• The full name of the individual nurse aide and his or her certification status in the state.

The Long Term Care Community Coalition (LTCCC), a private New York based organization dedicated to improving care and conditions in nursing homes, is calling upon state and federal legislators to pass laws requiring nursing homes to meet staffing standards to improve the quality of care in the industry. In a June 2013 report titled, “Nursing Home Policy Brief: Mandatory Minimum Safe Staffing Requirements Needed to Protect Nursing Home Residents Now & in the Future,” the LTCCC points out that many studies have indicated that there is a direct link between staffing levels and the quality of care residents receive in nursing homes. By mandating that nursing homes maintain minimum staffing levels, the report contends that such laws will reduce the number of injuries and hospitalizations among elderly residents due to lack of care.

woman hospital.jpgThe report states that based upon recommendations provided by the Center for Medicare and Medicaid Services (CMS), nursing homes should be required to maintain staffing levels that allow for residents to receive 4.1 hours of direct care per day. In a CMS report to Congress, it was determined that residents who received less than two hours of nurse aide care per day had much higher rates of avoidable hospitalizations and bed sores. From 1999 to 2005, registered nurse hours in facilities fell by 25 percent while licensed practical nurse hours fell by 22 percent and certified nurse’s hours decreased by seven percent.

The LTCCC’s report indicated that decreases in staffing levels results in poor care. For instance, because many residents have limited mobility, they need to be repositioned periodically to prevent pressure sores, which can lead to complications such as cellulitis, infections or osteomyelitis. Improving staffing levels would reduce such incidents. Moreover, facilities with a low number of staff often have patients who are malnourished, which can lead to infections and even death. In addition, improving staffing levels would lead to better incontinence care. When patients’ incontinence briefs are left unchanged, such a lack of care degrades their dignity and increases their chances of developing pressure sores. As a result, the LTCCC argues that mandatory minimum staffing requirements in the nursing home industry would prevent residents from suffering harm or injury due to negligence.

According to a 2013 study conducted by The Long Term Care Community Coalition (LTCCC), an organization dedicated to improving nursing home care in New York, the state’s new Managed Long Term Care (MLTC) policy may reduce the overall quality of care in nursing homes. The report, titled “Mandatory Managed Care in New York State Nursing Homes,” also concluded that the new managed care initiative will likely limit where consumers can go to receive long term nursing home care. In some instances, consumers may be forced to stay in facilities that aren’t equipped to meet their needs or have a history of fraud, neglect or abuse.

In 2011, New York’s Medicaid program spent $8 billion on nursing home care. New York currently has the largest nursing home population in the United States; one in ten nursing home residents are from New York. In response to the growing and costly program, Governor Cuomo announced in 2011 that his administration was going to redesign the state’s Medicaid policies to improve care, reduce costs and achieve a more “efficient administrative structure.” Because one-third of the state’s Medicaid funding goes to nursing homes, the nursing home industry will be greatly affected by the new changes, which will be implemented in 2014.

Under the old Medicaid program, in what was known as a “fee for service” policy, Medicaid would pay for any costs incurred when a service was provided by a health care facility, including nursing homes. Under the new program, known as Managed Long Term Care, the state will pay private health insurance companies a set rate to cover patient care. The insurance companies can then determine which nursing homes they want to include in their networks.

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