I read an article in the Chicago Tribune about a deadly assault on a nursing home resident, resulting in death.  This is a shocking development but I am seeing more cases in my own law practice involving assaults on nursing home residents.

These are not cases of assault by the nursing home staff.  These are cases of assault by OTHER RESIDENTS.

Nursing home residents have a right to be safe while in the nursing home.  If other residents have violent tendencies and/or medical or psychological problems that cause them to physically lash out at others, the nursing home has a responsibility to protect the other residents from acts of violence.  Failure to do so may be the basis for a neglect or abuse claim against the nursing home.

The Bush Administration put a rule in place that designates state nursing home inspectors and Medicare and Medicaid contractors as “federal employees,” according to an article in The Washington Post.  The public was not informed of this change and was not given any opportunity to comment or protest this change.

You may ask:  What’s the big deal about that?  Here is the big deal:  this designation means that state nursing home inspectors do not have to provide evidence relating to nursing home inspections in civil litigation.  The information in those inspections can be crucial in holding nursing homes accountable for negligent or abusive injuries to patients.

The effect is already being felt in civil cases across the country.  Routine requests for information in negligence and abuse cases are now tied up in bureaucratic red tape, to the detriment of the victims.  I see victims of nursing home abuse and neglect every day in my law practice.  The information from state inspectors is vital to investigations of these claims and should be a matter of public record.  There is no justification for keeping it secret.

I read an article recently about attempts to limit damages in lawsuits against nursing homes in Tennessee.  Maryland has had these limits in all personal injury cases for many years.  The nursing home industry argues that these limits are necessary because the cost of defending “frivolous” lawsuits takes away resources that would otherwise go to patient care.  Who are they kidding?  One problem with this argument is that the nursing home industry defines all lawsuits as “frivolous”, even when patients have suffered terrible injuries or death due to neglect.  In my experience representing patients who have been injured by substandard care in nursing homes, the nursing home industry will readily pay tens of thousands of dollars to defend cases where their negligence is clear and, in the end, pay significant amounts in a settlement or verdict.  That just does not make sense.  Wouldn’t that money be better spent on hiring more staff to care for the patients and training the staff already there?

Another problem with the industry’s argument is that the facts do not support it.  Take Maryland as an example.  We have had limits on damages in injury cases for over 2 decades.  Has this improved the care in nursing homes?  Looking at the Medicare Nursing Home Compare website you would have to say NO.  There are a significant number of nursing homes in Maryland rated “below average” and “much below average”, especially the corporate homes such as Manor Care and Future Care.  Apparently the savings from limited damages are not being spent to improve patient care.

Medicare today unveiled its 5 star rating system for nursing homes.  1 star means much below average.  2 stars means below average.  3 stars means average.  4 stars means above average.  5 stars means much above average.

The overall star rating considers health inspections, staffing and quality measures.  What does this mean for the consumer?  It is a good thing because it will be easier to evaluate and compare nursing homes.  For example, HCR Manor Care is a for-profit organization based in Ohio.  It  owns and operates nursing homes throughout the country.  Twelve are in Maryland.  Ten of those twelve nursing homes are rated below average or much below average.  Medicare considers one home, Manor Care Rossville, a special focus facility.  This means that the facility has a persistent history of poor quality care and is subject to more frequent inspections and monitoring.

This is vital information that you must have if a loved one needs care in a nursing home.  Too often, families become aware of deficiencies in care only after a loved one has been injured.  I see this often in my law practice.  I am glad that families now have a helpful way to get needed information about the quality of care in nursing homes.

The Baltimore Examiner carried a story today about a nursing home resident in Missouri who was found dead in her wheelchair outside of the facility on Christmas Eve.  According to the authorities the woman’s death will be classified as “unnatural” and “weather related.”  Her family said that she did not suffer from dementia and would need help to get in her wheelchair and outside of the facility.

The nursing home, Northgate Park, has a 1 star overall rating (out of 5) by Medicare.  It is impossible to understand how this could happen to a patient who was so vulnerable and in need of assistance and supervision.  It also emphasizes the importance of gathering as much information as possible about any nursing home that you or someone in your family may need to use.  A great place to start is the Medicare website, Nursing Home Compare.

I just read a very troubling report from the Inspector General for the Center for Medicare and Medicaid Services about deficiencies in nursing homes nationwide.  Any nursing home that accepts Medicare or Medicaid patients must meet Federal standards and be inspected at least every 15 months for compliance with those standards.  If the nursing home fails to meet one or more standard, a deficiency is issued.  In each of the past three years more than 91% of the nursing homes surveyed received deficiencies.

Between 2005 and 2007 the average number of deficiencies per nursing home increased more than 10% from 6.4 to 7.0.  In each of the past three years. for-profit homes have a higher percentage of deficiency than not-for-profit or government homes.  In addition, for-profit nursing homes had a higher average number of deficiencies than either of the other two groups.  For example, in 2007 for-profit homes had an average 7.6 deficiencies per home, while not-for-profits had 5.7 and government homes had 6.3.

Of even greater concern is the nature of the deficiencies.  The most commonly cited deficiencies for all nursing home over the past three years were quality of care, resident assessment and quality of life. A more alarming finding is that in 2007 nearly one in every five nursing homes surveyed were cited for deficiencies which caused actual harm to a patient or placed the patient’s life in immediate jeopardy.  These numbers are shocking.  Patients in nursing homes are totally vulnerable and at the mercy of their caregivers.  There is no excuse for injury or harm to a patient from a failure to meet these Federal standards.

I just read an article about a nursing home patient in New York who wandered out of the home unnoticed.  Two days later she was found in the woods – dead.  You may think this is unusual but I can tell you that is not the case.

I have handled this type of case in Maryland.  In my experience, the problem results from a failure of the facility to have enough staff on duty to properly care for the residents.  Patients who suffer from dementia or Alzheimer’s frequently wander.  If a facility accepts these patients then there must be enough staff to watch them as well as other safeguards, such as alarms, to alert the staff if a patient leaves the unit or walks out the front door.

I just read a news report out of the state of Missouri about a nursing home worker charged with hitting a resident and forcing water into his nose and lungs through oxygen tubing.  How can this happen?

Based on my experience representing victims of nursing home abuse, I believe that there are several reasons.  First, many nursing homes are grossly understaffed.  The nurses and aides must care for a large number of patients with complex problems, but have little time to spend with each patient.  Under pressure to perform tasks quickly, the staff can lose patience and take it out on the people they care for.  Second, many nursing homes do not properly screen potential employees by checking references and criminal backgrounds.   Failure to do background checks can result in terrible hiring decisions.  Finally, residents in nursing homes today frequently suffer from multiple and complex medical and psychiatric problems.  The staff at many nursing homes are not properly trained to deal with these complexities.

Admitting a loved one to a nursing home is an emotional and difficult experience.  Increasingly, nursing homes are including mandatory arbitration clauses in their admission papers.  By signing a mandatory arbitration clause, the patient and/or his family gives away a significant legal right — trial by jury – should a dispute arise over the quality of care rendered to the patient.  These clauses purport to be voluntary.  However, the patient and/or his family is already under great stress at the time of admission, worrying about the patient’s health and future care needs.  Usually, they simply sign all of the necessary admission papers without any understanding of the implications of such a clause.  Recognizing the unfairness of these clauses, legislation has been introduced in Congress to invalidate them.  But the powerful forces of the nursing home industry are fighting hard to defeat this legislation, and they may win.

Why is the nursing home industry fighting so hard?  MONEY.  The industry knows that juries will hold nursing homes accountable for bad care and award significantly more in damages than most arbitrators.  Wouldn’t it be better if, instead of spending money on lobbyists to influence Congress, the industry spent that money to hire more patient care staff and better train that staff?  Maybe then the nursing homes would not have to worry so much about lawsuits.