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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome to the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will smith.
Schenk: And we are hosts of this podcast. As this goes to air, it is February 5th of 2018. Will is in full-on preparation mode for Valentine’s Day, which is coming up.
Smith: That’s interesting that you say that because I’m the single one and you have a girlfriend.
Schenk: Okay. What does Will do, because this is a hard time to date, because it’s like, okay, you don’t want the first date to be Valentine’s, but it might be the third date or the second one, like that’s tough to do.
Smith: I’m going to be honest with you. I don’t do anything different. I don’t think about the fact that it’s Valentine’s Day, because if I go out with somebody, let’s say that we go out the first time at the end of January and we go out again in February a couple of times. Let’s say by Valentine’s Day, we’ve gone out five times.
Schenk: Well that’s it for you. It’s done. You’re never seeing that person again.
Smith: Yeah, I’m not getting you a Valentine’s Day gift. Like are we married?
Schenk: So what is it? Three months?
Smith: I think we’ve had to have gone around the sun at least one time. For a Valentine’s gift? Like I get my mom something because like whatever.
Schenk: You always have to get your mom something, like Mom always gets the same crappy, like not even Russell Stover’s, like I think my mom gets…
Smith: Yeah.
Schenk: But actually, people, like this is genius now, now I get her, because she likes Snickers, now they make Snickers like the Russell Stover’s things but it’s like little Snickers in the heart.
Smith: Oh, that would be amazing.
Schenk: Yeah, so I give her that.
Smith: I would get me one of those for Valentine’s Day.
Schenk: I love the confectioner sugar candies – what are they called? Telegrams? They have a name.
Smith: I’m sure that it’s not telegrams and you’ve just invented something.
Schenk: No. It has a name that’s something like that. It’s like Teletubbies? The hearts that say like, “Love me,” “Kiss me.”
Smith: Oh God.
Schenk: Those are my favorite things in the world.
Smith: I hate – I can’t even look at you. That’s candy then. That’s dime store candy. I don’t eat candy ever. I eat chocolate and I’ll eat cookies, I guess. But candy, candy? It’s just like little pieces of candy. I couldn’t hate that anymore. It’s not possible. If the candy factories ended up polluting all of the southeast United States and killed all nature, I couldn’t hate those little candies anymore.
Schenk: I don’t understand why. And also, they’re called Conversation Hearts.
Smith: Conversation… So here’s what I want you to think about that he did. He said, “Telegram.”
Schenk: Yeah, telegram candies.
Smith: So telegram is a method of communication and then he thought, “Communication, that’s like a conversation.” So you have to reverse engineer where he came up with that and it’s fascinating.
Schenk: It’s very difficult in my thought process. It’s like the “Being John Malkovich” movie.
Smith: But anyways…
Schenk: Actually I have one… No, it’s okay.
Smith: No, go ahead.
Schenk: I’ll say this about the end of the story. Daniela, because she’s Brazilian, is not familiar with many – not many, some things that how could you be familiar with them?
Smith: Yeah.
Schenk: And it’s about when we were in New York passing by a place that sold those, and she was like, “What is this?”
Smith: And that is what she sounds like.
Schenk: Yeah, and the guy who was selling them was like, “Hey man, let me just get a couple of these things,” and he did it because he’s like, “You’re telling me that lady’s never had one of these in her life?” and I’m like, “Yeah.” And he’s like, “This is a public service. Here. Please.” Like New York is like, “Hey buddy, get out of my way,” but this guy was so taken aback.
Smith: What was this guy doing selling Valentine’s Day candy?
Schenk: It was in, what’s it called, Union Station? What’s the nice – like it’s made in the 1920s.
Smith: Union Station.
Schenk: Right. And it’s like a candy shop in Union Station and you can take shovels of things, and I think it had a thing by the counter or whatever, and I was like, “Hey, let me get a couple of these.”
Smith: You couldn’t just give him a dollar?
Schenk: I tried to. That’s what I’m saying. He goes, “No, I forbid you. This is her first experience with this. I cannot accept money for it.” Also he probably didn’t want to ring it up.
Smith: What did she think about them?
Schenk: Oh, she didn’t like them.
Smith: They’re horrible, that’s why.
Schenk: They’re great.
Smith: You have taste buds of a 5-year-old or an 80-year-old because those are the only two groups that like candy like that.
Schenk: That’s true. That is true, but I skew more 80-year-old because I love blue cheese and I love blue cheese dressing.
Smith: Yeah, that’s different though. That’s food.
Schenk: Well anyways, aside from this, we have a lot of good things to talk about in the episode.
Smith: No, they’re horrible things.
Schenk: Well interesting things, interesting topics. When I say good things, I mean interesting. You’re right, not to be taken lightly.
Smith: Yeah.
Schenk: But the topic I want to address in this episode is medication errors, and to get us rolling on that, there’s a story about this coming out of Gainesville, Florida.
Smith: I was about to say, if you chose Gainesville, Arkansas… Again, for those of you who may have missed the last episode, Rob has a propensity for some reason now to pick cities in other states other than Georgia that have an identical city in Georgia, in other words, Atlanta, Texas, or Alpharetta, Mississippi.
Schenk: Yeah, or Macon, Ohio.
Smith: Macon, Ohio. This one comes out of Gainesville, Florida. Okay, man.
Schenk: There is a Gainesville, Florida.
Smith: I know there’s a Gainesville, Florida. Anyways so this is Arkansas – 65-year-old sudden death from a medication error administered from an Arkansas nursing home nurse is just one of the number of significant errors found by CMS in the state. Arkansas received 1.3 million in fines and federal data reports substantial data errors were discovered in one in five nursing homes in the state or 234 nursing homes. After this resident’s death, this nurse was suspended from practicing, was fired, was issued reeducation and her license was reinstated in September.
So typically whenever you’ll hear me not excuse but at least come to the defense of the nursing home staff, the people in the trenches which are the CNAs and the floor nurses. So remember when it comes to, for example, a totem pole, which we have learned actually is reverse from what we…
Schenk: In terms of order of importance of people represented on it.
Smith: The least important people are actually on the top, so if you can imagine, the least important people in a nursing home, as far as those with authority, not what they do – CNAs are at the very – and I’m going to get rid of the totem pole thing because it keeps confusing me – CNAs are at the bottom of the list. Okay, CNAs are the least important as far as authority, not what they do, but authority. Then you have floor nurses, again, little authority. Then you’ll have charge nurses. Then you’ll have a DON. Then you have an administrator. Then you have a board of directors.
They’re the ones though that are physically hands-on the resident, so they may have the least amount of authority, but they’re probably the most important job, because you have to have CNAs and floor nurses. You have to have somebody getting the residents up, giving the resident medication, feeding the resident. You have to have that. And it’s unfortunate and you’ll hear me come to their defense a lot of times when they have allowed negligence to occur because I feel like it’s understaffing that is the real culprit here.
In this one, this nurse actually has a history of administering the wrong medication, so I think it was appropriate she was terminated, that her license was suspended and that she had to go through reeducation. That being said, passing out medication was – I never did that. I was a CNA.
Schenk: Okay, just for the purposes of the audience, can you walk us through what does it physically look like?
Smith: I’m about to do that, hold on. I never did that. I was just a CNA, but my father did it and I watched it done all the time, but it gave me anxiety because it seemed so complicated and I was like, “I don’t know how you guys don’t mess this up.”
So what you have is you have this medical cart. It’s this big metal plastic cart that sits about chest level that’s got all these little drawers in it that correspond to the different residents of a single floor. So for example, the parlance that we used in the last place that we worked with was blue hall, green hall and I forget what the other hall was called. So imagine you’re on blue hall and there’s about 30 residents. So you’ve got this big metal and plastic cart that the nurse is pushing down the hall, and it’s got 30 drawers in it. Here’s a drawer for Ms. Johnson. Here’s a drawer for Mr. Johnson.
And this nurse at the prescribed time, that is their sole, their main job. They’re not changing diapers. They’re not supposed to feed. They’re not supposed to do anything other than chart and pass out medicine. So my dad or any of these other nurses would push it to Room 1, look in there – this is what Ms. Johnson’s supposed to get, one Advil as needed, a blood pressure medicine and something for her diabetes.
Schenk: Right. So if I can have the picture painted in my mind, pull the drawer out. What do you see?
Smith: Okay. So you pull the drawer out and you have these big sheets of medicine and the medicine is in there in these plastic – you have to push the button to pop the medicine out. So you’ve got these sheets of medicine, right? And it’s everything from narcotics to blood pressure to things for dementia, things for Alzheimer’s, whatever medicine they’re on, and everybody is on a lot of medicine. It’s not all psychotropic but they’re on medicine because most of them are in poor health. So they’re taking these sheets of medicine out. They’re popping it into the little white paper cups that they give to people for medicine. Then they’ll go in the room – “Hey Ms. Johnson, how are you feeling today? Here’s the medicine that you have to take. Here’s a glass of water. Go ahead and take it.” Sometimes that takes a while but that’s what you do until everybody has taken their medicine, and that can take an hour or an hour and a half.
Schenk: So tell me, where is the cart prior to her taking it to blue hall, and where does it go after she’s done with it?
Smith: Well you’ve got to understand the cart is restricted access because it has a lot of narcotics on it. So the cart is locked up and kept at the nurses station. If it’s not at the nurses station, it’s with the nurse and it’s being pushed down the hall. Not everyone has or should have access to the cart, just the nurses and the nursing staff – not the CNAs, but the floor nurse, the charge nurse, the DON, they may have access to this, because you have to sign out this medicine as you pass it out.
Schenk: So it’s accounted for.
Smith: So it’s accounted for, yeah.
Schenk: So the individual passing out the medications after she’s done with Ms. Johnson, she checks it off of a list?
Smith: She checks off what happens because a couple things could happen. She could go to Ms. Johnson and be like, “Ms. Johnson, do you need something for pain?” and Ms. Johnson could go, “No, I don’t want anything right now,” and she’ll have to mark off, “Did not request anything. Did not request a narcotic.”
Schenk: Because some of these prescriptions are discretionary.
Smith: Yeah, they’re discretionary, and these are also prescriptions that have high street value, opioids, and there’s a huge opioid problem in America right now, so the nursing staff have to mark what did I do with this medicine? Did Ms. Johnson take it? Did she vomit it up? Did she spit it out? Did I even take it out of the package? Or it could be something like that’s not a psychotropic drug. It could be something that’s just for blood pressure, Lisinopril for example is a very common blood pressure medicine. So I went there and I tried to give it to Ms. Johnson and she refused to take it. We did everything we could. We couldn’t get her to open her mouth. She lashed out at us and said, “Get out of my room.” We couldn’t get her to take it. So I’m marking down I couldn’t get her to take it. Then I’m going to call the doctor and say, “Doc, I couldn’t get her to take her blood pressure medicine.”
So everything has to be marked as to what they’re doing, and you’ve got to imagine, it is not easy getting these people to take medicine. It’s just not easy. And not only are you going through each of these drawers and you’re popping these medicine out and you’re looking at this chart, but you’ve also got CNAs that are constantly coming up to you and going, “I can’t get to Rose and feed her dinner or lunch or breakfast.”
Schenk: Or other residents.
Smith: Or other residents, or, “Hey, somebody fell and they’ve cut their head,” or this happened or this happened or this happened, because you’re the floor nurse, and the floor nurse is the one that’s in charge of this hall. The charge nurse is in charge of all the floor nurses, but sometimes they’re not very good at what they do or they’re busy themselves, so that floor nurse is the first person in your chain of command that you go to. So you’ve got CNAs that are constantly bombarding this floor nurse with all of these problems that they’re having and it’s easy.
It’s easy as you’re doing this to go through this and forget to pop out a medicine for Ms. Johsnon. And it could be devastating because some of these medicine aren’t just – they’re not just prophylactic, like things that are preventative. They’re not just psychotropic. They’re not just pain medicine. Some of them are absolutely dire. Ms. Johnson must have this medicine or she could die. You must give her insulin or she could die. And it’s easy for stuff like that to slip through the cracks and for somebody not to do it. I could totally see it, which is why it always gave me anxiety watching these nurses go through and pass out this medicine because I was like, “Man, how do more mistakes not happen. That’s what’s amazing to me.”
But in this case, even though I will defend what the floor nurses are doing as far as passing out medicine, this woman has a history of passing out the wrong medicine, so maybe she shouldn’t even be passing out medicine, period, if she can’t do it.
Schenk: Yeah, she’s playing on her phone, easily distracted, something like that.
Smith: Oh yeah, absolutely.
Schenk: See, I don’t know this stat, but I wonder what percentage of nursing homes across the country have moved towards iPad charting versus actual paper charting this.
Smith: I don’t know because I stopped I think in – I think the last time I worked in one was in 2008, and I still had a – not even a flip phone at that point. I had moved into flip phones, so we didn’t have the technology back them. I think a lot of things are more technology-based because that’s better, especially when it comes to charting so you can’t just go back through and mark it whenever you want to. It has a record and a history, but those things also cost money and you’ll hear time and time again us talk about how the owners of these places are trying to cut corners, so if you’re trying to line your pockets and cut corners and you’re not hiring enough staff, I’m pretty sure you’re not investing in iPad medical charting equipment either.
Schenk: And that shows because, let’s see, in Arkansas alone, I don’t know if you mentioned this or not, but a watchdog group in Arkansas documented there were 261 significant medication errors that they uncovered. So not medication errors that ended up not being a problem but significant ones that had some type of ramification on health or some potential ramification on health – 261 errors in 2013. That’s just what we found out. And that’s probably a drop in the bucket. I mean medication errors, just based on that, are a serious problem in Arkansas if not every state in the country.
According to this article, federal data shows significant errors on average are discovered in one of every five nursing homes in Arkansas, which have 234 facilities. Neither state nor federal regulators could provide any information on any medication errors that resulted in deaths. Fines, though, were levied in 43 of the cases, totaling about 1.3 million according to federal data. Arkansas’s significant error rates far surpass those in other states and Arkansas, which is the Natural State – I didn’t know that – Arkansas’s motto is, or their nickname is the Natural State, is the only state that’s ranked in the top 3 percent of errors in each of the past five years.
Smith: Yeah, and that’s horrible. I don’t know why it seems to be this way, but it seems like it’s more southern states that are the problem, and within those southern states, the less educated areas are even a bigger problem, and I guess I shouldn’t say – I don’t know why, but it makes perfect sense. Even in Georgia, and I love this state and I’m not criticizing anybody who is from south Georgia – I love south Georgia – but we have constantly had complaints about south Georgia to the point where I’ve even thought about opening up an office down there.
And I think it’s just the lack of qualified staffing that’s available in these places. Arkansas is not a very well educated state. It’s not a very wealthy state. If you’ve ever driven through Arkansas, there are parts of it that still look like a Steinbeck novel from “The Grapes of Wrath.” It’s – okay, so sorry, but it is. I went to the Ozarks to go camping one time and I drove through Arkansas and there’s just not a lot going on there. And I’ve got good friends from Arkansas – sorry guys, but it’s true – but there’s not a lot. Georgia is one of the worst offenders in the nation and Georgia doesn’t, I would not say does better in education than a lot of other places.
Schenk: And that’s what this article points out, is education and money. Money means staff, so most experts trace the medication errors issue to staffing. Nursing homes typically have high employee turnover and staffing levels are usually kept near a minimum to do what? Maximize profits. Let’s see here…
Smith: And you know, medication errors, again, are also something that are really hard to track because unless it involves, unless it’s clear that the medication error is what happened, people are not going to know about it, because these people are elderly in the first place, and let’s say Ms. Johnson doesn’t get some medicine, and because of that, she dies. It’s not like the team from CSI is coming out there to do an autopsy and determine, “Oh no, she didn’t get her Lisinopril and that led to this, which led to this, which led to that and she died.” No, Ms. Johnson died and the family’s upset, but nobody’s really investigating it. And by that time, the nursing staff has probably altered the documents and said, “No, no, I gave it to her. I definitely gave this to her.” And how are you going to prove them wrong?
Schenk: And that’s actually a good point and a good segue to talk about some of the observable signs of medication error. One of the observable signs in your loved one would be drastic changes in physical, observable physical features, so weight would be the most important one. So if your loved one has dropped weight drastically very quickly or gained weight very quickly, that could possibly be the result of a medication error, and a lot of times a continual medication error. So they continue to be not provided a particular drug, which would have an effect on the other drugs they’re taking, which would cause rapid weight gain or rapid weight loss. Another one might be a rapid change in demeanor, and these aren’t rules – these are just things to keep in mind.
Smith: Yeah, it also could be literally any change whatsoever.
Schenk: Yeah.
Smith: If you notice your grandmother or your mother is acting differently or looks differently in any shape or form, always bring it up to the nursing staff, because they may not even realize it.
Schenk: Yeah.
Smith: Because that’s, like I said again, my heart goes out to all the charge nurses or the floor nurses, anyways, who are passing out these medicines, because unless they’ve got a better method of doing it nowadays, I just don’t know how many more mistakes will happen because it seems so complicated and tedious and meticulous that it was just ripe for making mistakes.
And you’ve got to remember these residents too are not sitting in their rooms always waiting on their medicine. They’ve got to go find them. They’ve got to go break it up sometimes and put it in food. It’s a hard job. It really is.
Schenk: Yeah, until we get robots.
Smith: Yeah, and that’ll be the end. Then we’ll have a problem with robots abusing the elderly, which is going to happen.
Schenk: Yeah. Speaking of robots – no. I don’t know.
Smith: Speaking about…
Schenk: Talking about…
Smith: One of my favorite robotic movies where they do hurt the elderly is The Terminator, and speaking about The Terminator, I think we have terminated this episode.
Schenk: That’s – I mean that’s as good as it’s going to get.
Smith: Yeah, it’s as good as it’s going to get.
Schenk: You can always watch this podcast.
Smith: You can always.
Schenk: You can always – just put it on repeat.
Smith: On a loop.
Schenk: On a continual loop – just put it in the background.
Smith: Yeah.
Schenk: Anyways, go to our YouTube channel or you can watch it on NursingHomeAbusePodcast.com. Right now, I think it’s fair to say we’re the most watched nursing home abuse podcast online right now.
Smith: That is correct.
Schenk: I think we can actually say that without it being any type of misrepresentation.
Smith: That’s right. No embellishment whatsoever.
Schenk: Right.
Smith: We are also the most listened nursing home abuse podcast on Spotify.
Schenk: That’s right.
Smith: By a wide margin.
Schenk: By a wide margin.
Smith: Yeah.
Schenk: So as Will was saying, you can also listen to us, this podcast on Spotify, Stitcher, iTunes or wherever you get your podcasts from. And with that, we will see you next time.
Smith: See you next time.
Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.
