What does ‘assist’ mean in a nursing home?

Episode 67
Categories: Neglect & Abuse, Regulations

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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 episode 67 of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers focusing in the areas of nursing home abuse and neglect in the state of Georgia. Lots of interesting topics on the show today. As this show goes to air, it is May 7th, 2018. I would like to take a second to say happy birthday to my buddy Kiko, who is also getting married this year.

Smith: Oh yeah, that’s right.

Schenk: Yeah.

Smith: Where’s he going to be?

Schenk: He’s getting married, I think it’s Jackson, Tennessee, at a venue that I think at some point was owned by David Alan Coe, like it’s a special venue. It’s like a cave or something in Jackson, Tennessee.

Smith: Who’s his best man?

Schenk: My brother.

Smith: Really?

Schenk: Yeah, my brother, I think. They don’t listen to this show so it’s fine, but I’m pretty sure my brother is acting as best man.

Smith: And they knew each other before you two knew each other.

Schenk: Correct, by a matter of weeks, I think.

Smith: Yeah.

Schenk: So also shout out to Ocalee and Mary Ellen because this Sunday is…

Smith: The 13th.

Schenk: …is Mother’s Day. So what did you get? Do you do – oh, you all aren’t normal. What do you get for her?

Smith: She likes time spent, so I’m doing a cookout.

Schenk: What are you going to cook?

Smith: Probably a pork butt, pork brisket, something that takes about 14 hours to cook.

Schenk: Here’s something for all the listeners out there is that Will actually on top of being a top-notch attorney is actually a fantastic chef when it comes to meats.

Smith: Meat.

Schenk: Meats – like it’s amazing. He’s really good at it. So walk us through really quickly how you do a pork butt?

Smith: The hardest part of it is just that it takes 14 hours and you have to constantly tend to the fire so you keep the temperature. I put it on a smoker. I use chunk charcoal, which is natural charcoal – it’s not briquettes, because I like the way it burns better. It burns longer. And over the course of 14 hours, I’ll stay up all night long and I’ll just keep slowly feeding it so it remains at a constant temperature and it slowly cooks this thing, and 14 hours later, I mean you could put any meat on there and it could fall off the bone.

Schenk: That’s amazing. That’s awesome.

Smith: Yeah.

Schenk: I think I’m going to get my mom a Snickers bar. That’s her favorite candy.

Smith: It’s mine too.

Schenk: Is it? It’s packed with peanuts.

Smith: Yeah.

Schenk: It satisfies.

Smith: It’s salty and savory.

Schenk: Yeah. Anyways, so happy Mother’s Day everybody. A couple of stories that we wanted to highlight for this week – no guest this week again, just us – so I wanted to talk about a case out of Indiana out of the city of Kokomo, which I would have thought would be in Hawaii.

Smith: Yeah.

Schenk: Remember when the Beach Boys made a – I don’t know if it was a comeback or what their deal was, but in the late ‘80s, they had the song Kokomo?

Smith: That’s right.

Schenk: A place called Kokomo.

Smith: We can get there fast, then take it slow.

Schenk: Take it slow.

Smith: This time I want to go to Kokomo.

Schenk: All right, are you ready? Bermuda, Bahama – no, no, wait. Antigo…

Smith: Bermuda, Bahama, come on baby mama.

Schenk: That’s the second hard.

Smith: Key Largo, Montego, baby why don’t we go.

Schenk: Why don’t we go.

Smith: Down to Kokomo. Get there fast…

Schenk: Get there fast.

Smith: And we’ll take it slow.

Schenk: Yeah. But it’s not Montego.

Smith: Montego – like Montego Bay.

Schenk: Okay, so it is Montego. I always thought I made up one of the places.

Smith: No, it’s like Montego.

Schenk: Okay. Anyways, Kokomo, Indiana, everybody. The family of a woman who fell in a shower and died several months later while living in Aperion Care Kokomo Skilled Nursing Facility is suing the nursing home for wrongful death.

Cecily Dalton, a 75-year-old amputee who had one leg, was staying at the nursing home in March 2017 when she was taken to the shower room by staff and left standing on her sole leg without proper assistance. Nursing home staff reported they found Dalton in the shower with her leg angled over her right thigh in a twisted position. She was later diagnosed with a displaced spiral fracture in the femur. The lawsuit said Dalton was screaming from her injury and later revealed her pain at “20” on a scale of 1-10. One of the nurses made the “inexplicable decision” to move Ms. Dalton back to her room and placed her into bed before calling an ambulance.

The complaint alleges nursing home staff claimed they didn’t witness the fall during a 911 phone call, but then later falsely documented the incident to suggest Dalton’s fall was witnessed and caused because she let go of a wheelchair.

She suffered in a debilitated state the next several months before she died on June 26 of 2017. The lawsuit alleges the nursing home staff failed to accommodate Dalton’s physical needs and she experienced at least 16 falls during her stay.

In this instance, Will, we hear the word “assist” in this story and we hear the word “assist” when it comes to nursing home care in terms of “this person needs x number of assists.” What does that mean?

Smith: So when they do the initial assessment and they do the minimum data…

Schenk: They being the nursing home.

Smith: They being the nursing home – minimum data set, one of the things they have to determine is how many people are going to be required to assist this person. So for example, let’s say you’ve got somebody who – let’s say Rob or I just had hip surgery. That happens with people who are in their 40s sometimes. It can happen. You can have a car accident. Or I would say your brother-in-law.

Schenk: Yeah, Gabriel.

Smith: Gabriel – he needed assistance, right? I would imagine that one person would be all the assistance he needed to stand up or to sit down. Would you agree with that?

Schenk: Well when it first happened, he was a two-person assist.

Smith: He was a two-person assist. But eventually he’s a one-person assist. And so people who can do things but they have trouble with that deceleration down to a seat or that initial force to get up, they’re a one person assist, and it depends also on how much they weigh. But it’s a big deal because one CNA is assigned to multiple residents, so when you have one of your residents that’s a two-person assist, you will have to go get another CNA to help you or you’ll have to use a lift. But that’s what it means. It just means the level of assistance that she needs, not only the number of people, but to what degree mechanical supplementation is required.

Schenk: Okay, and so in this instance, you’re talking about a 75-year-old woman with one leg, or one functioning leg, and then another leg to the thigh.

Smith: Yeah.

Schenk: Surely she is a two-person assist to get up and out of that wheelchair.

Smith: Yeah. It also depends on how much she weighs, and to be honest with you, they use some machines now a lot more than they used to. And that machine and a person could be sufficient. But it depends. I don’t know the circumstances beyond just the superficial what’s here.

Schenk: Well let’s talk about this then. What is the liability with regard to leaving a 75-year-old person that has one leg alone in a shower?

Smith: I mean I think that that is absolute negligence. And I will say this. Here’s another point to make is that the assistance that you need in a shower probably goes up just because there’s less friction in water and soap. So I would say that just because you needed a one person mechanical assist to get in and out of the dining room doesn’t mean that that’s the same thing you need in the shower.

Schenk: So take us through then, Will, in your experience with this, what would be the normal shower procedure for an individual that is in a wheelchair, which she should have been?

Smith: You’re going to put them in a shower chair and a shower chair, it’s usually constructed of – it looks like a big wheelchair that has PVC piping. It’s waterproof. It has mesh netting seat so that it’ll drain water and a mesh netting back. Sometimes it’ll just be a wheelchair that has – that’s waterproof that has a hole in the bottom because oftentimes individuals who are using shower chairs could be incontinent, and when you help them with the shower, this is also where they use the restroom.

But the most important thing is when you park that shower chair, whether it is a stationary or a mobile one, in the shower, it is locked and it is immobile, either because you’ve made sure it can’t move or somebody is standing behind it and holding it. Because when she stands up or somebody helps her assist to stand up, she is going to sit back down and that chair can’t move.

We have a case now where there’s a woman who had knee surgery and she was only in the nursing home for rehab, and they didn’t do that, and when she went to let herself back down in the chair, it moved because it’s in a shower and she fell and busted her knee open again.

So you know that she’s a fall risk. You know that she’s only got one leg. You can’t leave her in a shower by herself, like you just can’t do that. And the description of what happened to her is, I mean it’s awful.

Schenk: Oh, let alone the fact that they lied about it.

Smith: Yeah.

Schenk: So that’s actually a good segue. So in this instance, some people might be saying, “Well she fell down and broke her leg and I can see why the nursing home would be responsible for that if they just let her stand there with soapy water and fall down and break her leg. I don’t see,” – this is the fictitious audience member – “I don’t see why they would be responsible for her later death.”

And the answer to that is a nursing home, nursing home staff is going to be responsible for the reasonable consequences of a negligent act. So what’s reasonable? Reasonable in almost every court in the United States of America is the complications arising from an initial injury. So this individual falls and breaks her leg and has to undergo a hip surgery and then dies because her heart can’t take the surgery, then you’re responsible not just for the broken bone but her heart giving out and her passing.

And I’ll do you one even better. In many instances, the medical malpractice of the surgeon fixing the broken leg, if the surgeon drops a ham sandwich in there and an infection spreads because the ham sandwich, the nursing home is still responsible oftentimes. But for the negligence act of the nursing home, the ham sandwich wouldn’t have gotten in that wound.

Smith: And surgeries are by their very nature intrusive and risky, and that nursing home is the reason that she’s having this intrusive and risky procedure. And something else that people need to realize and we have to explain to clients all the time is that the issue of what is reasonable, the issue of what is damages, these issues have been litigated for hundreds of years. You don’t just go to a court with no case law and say, “Well Judge, here’s the thing. I think that it’s reasonable that because this guy rear-ended me and I don’t have a car that I missed court and now I have to pay more alimony because the judge held me in contempt because I wasn’t in court because I didn’t have a car because this guy rear-ended me.” This issue has been litigated. We have case law in this that is not reasonable – you should have gotten yourself to court. The fact that somebody hit your car and it injured you and because you had to go to the hospital, you missed worked is reasonable. We know because the issue’s been litigated, it’s been decided on.

So people tend to forget that these issues have been going on and judges and attorneys have been deciding them for literally hundreds of years, hundreds of years. Tort law is hundreds and hundreds of years old.

Schenk: Yeah. So moving onto – it looks like we’re going to New Jersey, which is the birthplace of Will’s favorite rock band ever, Bon Jovi.

Smith: Oh, yeah.

Schenk: Oh, you really like Bon Jovi?

Smith: No, I just wasn’t sure. I thought it was Bon Jovi.

Schenk: It was either going to be Bon Jovi or Bruce Springsteen. Who else is from New Jersey?

Smith: Yeah, yeah. Well I do like The Boss and I do like Bon Jovi.

Schenk: Okay.

Smith: My dad actually met Bon Jovi’s parents once. My dad is really good friends, well before he passed away, he was really good friends with the band 38 Special, and we knew them growing up, Don Barnes, and he went to one of their shows and I guess they were opening for Bon Jovi and his parents were there and he said they were just like typical suburban parents. They were just super regular.

Schenk: Wait, hang on – 38 Special, they were in the Lynyrd Skynyrd era?

Smith: Yeah, yeah. They were – yeah.

Schenk: What was their song?

Smith: “When The Heart Needs a Second Chance.”

Schenk: I don’t think I know that one.

Smith: “Never Give An Inch.”

Schenk: They were like Molly Hatchet, Lynyrd Skynyrd, 38 Special.

Smith: Yeah, they’re one of those bands – and I think they’re really good. They were just as quality as everybody else, but they’re one of the bands for whatever reason that didn’t make it as big as Lynyrd Skynyrd.

Schenk: Why are you tiptoeing around it? Like are you worried that 38 Special is listening to this podcast? Well I don’t want to offend the four members of 38 Special who haven’t gone on…

Smith: Well I don’t know. They’re getting old so they might be looking for nursing home advice. If you were to see like a concert flyer, they would probably be on the bottom of the list, but they’d be on there.

Schenk: And that would be a concert flyer for the Wilson County, Tennessee, State Fair. Yeah. Who was the other one? Oh, the ones that did the chainsaw song? Jackal. I’m sure that’s – I just named the winning bill of Boone, North Carolina’s State Fair – 38 Special, Jackal. Anyways, hopefully we didn’t offend anybody.

Here we go – New Jersey. Lawsuit seeks $50 million from a nursing home from the family of an individual who was blinded by pepper spray. So what does that mean? The estate of an Alzheimer’s patient who was pepper sprayed, arrested and hospitalized after wandering is suing the nursing home and the local police department for $50 million. You all right?

Smith: Yeah. I feel like I got sprayed with pepper spray.

Schenk: The suit claims both the police and the nursing home staff were negligent, reckless and discriminatory in responding to resident Angel Pantoja’s behavior in January of 2017. Court documents filed in New Jersey Superior Court allege the staff at the Wanaque Center for Nursing and Rehabilitation in Wanaque, New Jersey, failed to act appropriately to a display of dementia-related symptoms.

Police records showed Pantoja was charged with assault, resisting arrest and disorderly conduct after Wanaque Center staffers reported he was physically assaulting staff and other patients. A narrative from Keith Spillane, the responding sergeant, states police arrived to the scene at approximately 5:20 to be met by staff members at the control desk. At that time, Pantoja appeared calm at the end of the hallway, so in other words, this individual who’s suffering from Alzheimer’s was being aggressive with staff and other residents. The staff called police. The police have arrived.

After being made aware of Pantoja’s dementia, the sergent said he observed Pantoja approaching with a pointed object in his hand. The sergeant said he had been told by staff that Pantoja had previously stabbed one of his daughters in the eye with a knife. Accordingly to the lawsuit, Pantoja had not stabbed anybody with a knife and the nursing home employees passed bad information to the police.

And then according to the police report, Pantoja, who was 75, advanced, continued to advance towards the police officers with an unknown weapon, and then that’s when the pepper spray was used, which eventually ended up blinding Pantoja.

Smith: I’m curious and I think this is poor reporting on their part, but why that isn’t clarified as to whether or not that was permanent blinding or whether he was blinded as one would be by pepper spray. It doesn’t clarify that. They’re making the assumption and I don’t think that’s a valid assumption and that’s just lazy journalism. Is he permanently blinded?

Schenk: Well he died two months later, probably unrelated.

Smith: Completely unrelated. Like I’ve been sprayed with pepper spray numerous times, and it’s powerful but it’s temporary. Even if you’re an elderly person, it’s going to put you in shock, but it’s…

Schenk: But my issue with this…

Smith: And just to be clear, I got sprayed for training reasons. I haven’t assaulted people.

Schenk: Oh, that’s right. I was completely not listening to you. So you’ve been sprayed with pepper spray, but it was in the Marine Corps.

Smith: Right, not because I’m out there assaulting people but I had been sprayed with pepper spray, and it will take you down. It’s consuming, but, you know…

Schenk: My read on this, and I might be inferring too much into this, but it really felt like they hung this guy out to try, like he was being aggressive, okay, fine. But this is a person with advanced state of Alzheimer’s. There are other ways of dealing with him than calling the police and then acting like you don’t know the guy when the police get there. That’s insane to me, because the police have to respond, they have to go with the information they’re given and they gave the – the nursing home gave the police like information like, “This guy’s just walking around. We don’t know who he is.” And so they acted accordingly. They pepper sprayed him as opposed to, “This is an Alzheimer’s patient. Mr. Pantoja, he’s been here for three years,” or whatever it is, “He responds – we need to call his family. Maybe we can get his family on the phone, something like that.” But they didn’t do any of that, it sounds like.

Smith: Oh yeah, I don’t blame the police department here. They have no idea what’s going on. They show up on scene. This guy could be on drugs. He could have a psychotic breakdown. He could be mentally competent and he’s just being aggressive. They have no idea. But the nursing home staff, you agree to take these – the nursing home at least agrees to take on these patients with these disorders and medical conditions, and you know that these are potential symptoms, so you have to have a plan in place for when a grown man who has dementia becomes aggressive and psychotic. I have seen it numerous times. People forget, like this can be a dangerous job because you can have somebody who is 6-foot-3, 200 pounds, Mr. Johnson, walking around the halls, and he has a break with reality because he has dementia and he starts attacking people. You still have to have a plan in place. You can’t just say, “Well there’s nothing we can do now. Call the police now. Have them stun him and take him down,” which sounds like what Rob is saying, that’s what they did here.

Schenk: Yeah. It doesn’t seem right to me, like I feel like they could have…

Smith: I can tell you right now what happened was that – and again, it’s one of those “I understand it, I’m not condoning it” situations, but I can tell you what happened was this nursing home staff was tired of this guy, because he was probably constantly aggravating them, constantly aggravating other staff, constantly going behind the nursing station and getting into things and taking away their ability to do their regular jobs or their jobs for the rest of the people, and so they probably just got tired of it. But that’s no excuse, like don’t do this job then, you know?

Schenk: Yeah. That’s a shame. I mean I don’t know – if he wasn’t permanently blinded, then I don’t know if $50 million is the right amount of damages that we could ask for, but I don’t know. If he was permanently blinded and the last 10 months of his life, he couldn’t see, who knows?

Smith: That’s still not $50 million. Clearly that $50 million is – I don’t want to call it a stunt because I think that this nursing home should be sued. I think it’s to make a point. They’re not going to get $50 million.

Schenk: Okay, so moving on in the last few minutes that we have, this is something that can gross people out but better hand hygiene practices can mean fewer deaths in nursing homes. Tag line – there are 3 million infections in U.S. nursing homes every year. New research from the American Journal of Infection Control shows that when nursing home staff, residents and visitors adopt consistent hand hygiene protocols, these venues can actually reduce mortality and rates of antibiotic prescriptions, not to mention more people use hand cleaners.

Researchers studied 26 French nursing homes between 2014 and 2015. The hand hygiene program the individuals received included everything from access to hand sanitizing solution via small containers to online quizzes after the program concluded, and it showed that there were fewer deaths in that research group. Let’s see.

The takeaway – hand hygiene education can improve practices and limit infections. It is crucial that we increase efforts to bolster infection prevention programs in nursing homes because residents at these facilities have more underlying health conditions and are more vulnerable to serious complications, says Janet Haas, President of the 2018 Association of Professionals in Infection Control and Epidemiology. There are 3 million infections in nursing homes every year, which lead to the majority of the nursing home deaths and translate to as much as 1 billion in additional healthcare expenses.

Smith: So one of the things we have in healthcare is a practice known as universal precaution. And universal precaution is the method by which all human blood, all human waste is treated as though it has the most infectious diseases. So you go ahead and you make the assumption that this person has these infectious diseases. So if I go into Ms. Johnson’s room and I brush her hair, I then wash my hands before I go into the next person’s room. If I give Ms. Johnson a pill and put it into her mouth and then give her some water, I then wash my hands.

So I go above and beyond because it’s better to do more than you maybe need to than to become lazy and people start cutting corners, like, “Maybe I went in there and looked at something on Mr. Johnson and raised his shirt up, but I just raised his shirt up and touched his chest, nothing else, so I just went into the next person’s room,” and then it escalates. So university precautions require that you wash your hand with any contact, I mean you wash your hands before you move onto the next person. It doesn’t happen for time constraints and for other reasons, but it is the best way to prevent infection in any place, especially a nursing home, which is extremely dirty, is to constantly wash your hands.

Schenk: And I feel Will being from north Georgia, from the mountains of north Georgia, his natural inclination is to just…

Smith: Wipe them on my pants?

Schenk: Wipe them on his pants, rub his hand on the ground before he picks up food.

Smith: Rub some dirt, yeah, yeah, yeah.

Schenk: And the Marine Corps beat that out of him because I, being from Tennessee, I mean like if something hits the ground, it makes it taste better as far as I’m concerned. I’m not worried about germs at all. And I used to be of the conspiracy theory that you’re supposed to allow children to dig around in the dirt, do all that stuff and get…

Smith: Well I think that you should. There’s definitely truth to the perspective that exposure to the harms of the world helps you build resistance to those harms, but there are certain harms you don’t build resistance to, and that’s why universal precautions…

Schenk: Are the best.

Smith: …say that just treat the person as though they have AIDS because we don’t want you to get AIDS because your body’s not going to build an immunity to AIDS.

Schenk: Or other similar…

Smith: Yeah. We don’t want you to get TB because tuberculosis can kill you. We don’t want you to get sick. So nursing homes are extremely – and I say this all the time – people need to realize that they are extremely dirty places. Hospitals are very dirty places because you have sick people there who have infections that are leaving blood, stool, urine, various liquids and fluids from their body all over the place, and they’re contaminated. So remember that. My mom would make my dad and I take our scrubs off outside on the porch and we’d have to spray our shoes with Lysol and stuff like that and we’d immediately takes our scrubs and put them in the washing machine and we’d immediately have to take showers. She ran that place like a CDC because she understood how dirty our job was because we literally had people – we had human waste and feces and urine and vomit on our clothes.

Schenk: Speaking of dirty jobs, it is now my charge, my job to say that we have reached the conclusion of this particular episode of the Nursing Home Abuse Podcast. As you know, there are several ways to consume each and every episode.

Smith: And what are those?

Schenk: You can watch on the website, which is NursingHomeAbusePodcast.com, or on our YouTube channel, or you can listen by downloading the audio on Stitcher, iTunes, Spotify, PodMasters of the Universe, or wherever you get your podcast from.

Smith: I think most people would just stream the audio. I don’t think anybody has an iPod and they’re downloading the audio. Everyone is streaming audio.

Schenk: Somebody out there has to still have an iPod. Somebody out there. Surely. Anyways we hope that you’ve enjoyed the content of this episode. Each and every episode is available – no, I’ve already said that. New episodes are available – see, Will’s already tuned out. New episodes are available every Monday morning for your listening pleasure. And with that…

Smith: With that we bid adieu.

Schenk: We’ll see you next time.

Smith: See you next time.

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