New Federal regulations on what constitutes nursing home abuse

Episode 7
Categories: Neglect & Abuse

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 Law LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk Hey out there, thanks for joining us. My name is Rob Schenk.

Smith: And of course, I’m Will Smith.

Schenk And we are trial attorneys focusing in the area of nursing home abuse and neglect in the state of Georgia. We’re coming to you live on tape from our office in Atlanta, Georgia, and you are listening to the Nursing Home Abuse Podcast.

This is a video podcast you can watch or listen as you care to partake. If you choose to watch, you can do so either through our website at or on YouTube, or if you’d like, you can listen by downloading these episodes through Stitcher or through iTunes. And every episode is available, or new episodes are available every Monday morning for your daily commute.

So what do we have on the agenda today, Will?

Smith: We’re going to talk about the types, the forms of negligence that we see and the resulting types of damages that we see in the cases that we take.

Schenk Oh, excellent, so of course for the listeners out there, what are the more common types of injuries that you see?

Smith: Well you know, first and foremost, we’re looking for negligence. They fail to meet a standard of care, and that failure led to a certain injury. The injuries that we’re looking at are all severe, and I often tell people this – people will call us and I’ll say, “Listen, luckily for your loved one, this is not the type of case we would take. Yeah, there may be negligence, they may have failed to do something, but they’re not really hurt.” Always, when we take a care, it means that nursing home resident is in a bad situation. They’re really hurt.

So basically what we typically see are first of all two different types of damages – death and injury. Death can occur from various different ways, I mean certainly somebody can fall and hit their head and instantly die.

What we see a lot, however, is death by what’s called sepsis. And sepsis is a bacterial infestation of the tissue of the body, and what happens is your body, its own autoimmune, your own immune system, starts fighting that infection and shutting down vital organs. And sepsis can come from multiple different avenues. Sometimes it comes from places that are not the fault of the nursing home, but when it does, typically the biggest issue that we see are from bedsores.

Schenk So just to make sure that I’m clear, sepsis, which is a bacterial infection that’s in the blood…

Smith: Yeah, it’s in the blood, in the tissue, and what happens is your immune system starts attacking that tissue. It starts attacking its own body.

Schenk But that sepsis, that condition can be caused by bedsores. How is that?

Smith: Because we’ve said this in previous podcasts, they’re essentially gaping wounds that can go down into the bone, even lead to bone infections. And so when you’ve got usually a stage three or stage four wound…

Schenk Or even unstageable.

Smith: Or unstageable, yeah. Even worse, unstageable… And this person’s laying in their own waste and urine and they’re not being changed – and not to mention the fact that nursing homes are extremely, I hate to use the word “dirty” – there are a lot of germs in nursing homes and hospitals. Please remember that when you go visit loved ones. I can’t tell you how many times I have seen kids playing on the floor of hospitals, nursing homes. It doesn’t matter how many times they clean that with disinfectant. Nursing homes and hospitals are covered in germs.

And so you know, you’ve got an environment where a person has an entry into the body, a wound, and you’ve got an environment with lots of bacteria, and a lot of times, they’re in their own waste and filth and they’re not being turned, and so they get sepsis, and that leads to septic shock, which leads to death.

Schenk Through basically organ failure.

Smith: Organ failure, yeah. The other method that we see a lot of sepsis is actually urinary tract infections – urosepsis. And the reason why we see that a lot is, one, not proper perineal care, and the perineal is the groin and crotch area, and that can lead to a UTI.

Improper catheter placement or replacement or use – a lot of nursing home residents will have what’s call in-dwelling catheters. And what a catheter is it’s a tube, it’s a flexible little hose, and it goes into the urethra of a man or a woman and it goes up the urethra, and in the case of the man, over the prostate gland into the bladder. And the reason they have to do that is some individuals are not able for various medical reasons to drain their bladder, and so they have an in-dwelling catheter, they have a Foley bag on the side of their bed, and that’s the job of the CNA on a daily basis is to empty that bag, measure the output and document that.

You also can use a catheter for temporary purposes if you’re not able for various reasons, like individuals who are quadriplegic may need to use a catheter to use the restroom, but it’s a temporary thing, like you go to the restroom and it doesn’t stay in there.

So what can happen sometimes is they can – and I have seen this and it’s just absolutely awful – they can…what should be a temporary catheter, they leave it in for way too long, and that can cause urosepsis.

Schenk So basically in other words, because a temporary catheter, which is not designed to stay in for very long, is allowed to remain, infection is more likely in that situation, and that’s what causes the sepsis.

Smith: Yeah. And just the simple fact that having a catheter in makes you more susceptible to sepsis, so if you weren’t supposed to have the catheter in and that made you more susceptible to sepsis and you got urosepsis, that is an avenue of negligence and the damage is sepsis, of course, because that can, again, lead to septic shock, which can kill you. And so sepsis is a big part of it.

Schenk For the audience, how do we know that the sepsis relates back to the catheter or how do we know the sepsis relates back to the bedsores. What’s the process by which we connect those dots?

Smith: Well that’s why we have experts. That’s why we hire doctors and nurses to look at these medical records, and they piece it together and they do… I mean these are individuals that are medically trained that are familiar with nursing home procedure, and they can look at this and go, “Well it is my opinion to a reasonable degree of medical certainty that based on the autopsy report, based on the records from the hospital…”

A lot of times what will happen is the nursing home resident will get septic, extremely sick, and they’ll send them to a hospital, so our expert will base it on the nursing home notes, the hospital notes, the autopsy – and the autopsy, they’re typically not very in depth. The cause of death, if it favors your side, it’s important. If it doesn’t, you usually ignore it.

Schenk But from a general standpoint, I guess the issue is it’s easy for us to say sepsis caused the death and the sepsis was caused by urinary tract infection.

Smith: Yeah, but they rule everything else out.

Schenk Because that hits upon a very important factor in any nursing home abuse or nursing home lawsuit, and that’s causation – did the actual negligent act of the nursing home in the instance of a bedsore, did them causing the bedsore cause the sepsis, which caused the death? You have to connect those dots and sometimes that can be very difficult for the lawyer, but oftentimes it’s very difficult for a layman or a family member to grasp that just because something happened doesn’t mean it was caused by the preceding event, and that’s why it’s very important to retain experts, medical doctors, objective personnel that have experience in this realm to link those for you, because it’s not automatic. Just because we got more precipitation from 1980 and Ronald Reagan was elected in 1980 doesn’t mean that the precipitation was caused by Ronald Reagan.

Smith: That we know of.

Schenk That we know of.

Smith: But yeah, you’re absolutely right, Rob. What experts do – and the experts that we use, we don’t look for yes men or yes women. We’re not looking for somebody that just takes our money and says what we want them to do. We actually want their honest opinion, and there have been many times when an expert has said to us, “Yeah, clearly the nursing home allowed this stage three bedsore to occur. I’m sure that it was painful. Unfortunately as I look at the records and weight the different possibilities, this person’s death was not caused by that bedsore.”

Schenk It might have been caused by some other comorbidity.

Smith: Right, comorbidity, they’re simply the range of different problems that individuals have, which is a big deal in nursing home cases, because individuals will often have diabetes, high blood pressure, poor circulation, peripheral arterial disease, vascular disease. So when you’ve already got bad circulation, diabetes, possibly cancer, there are so many things that are going into that. It’s different if you have like a 15-year-old kid that’s in the hospital that dies – that seems a little strange. Having a 98-year-old woman pass away at a nursing home doesn’t raise as many red flags, so it’s important to have these experts.

Schenk So with causation, I got you sidetracked. You were discussing other common types of injuries that we encounter.

Smith: Yeah, so it’s not just bedsores or UTIs that are causing sepsis. Other injuries can cause sepsis. It’s also falls. Falls are a huge part of nursing home litigation, and that’s because nursing home residents are anywhere from completely bedridden to able to walk around, but even the ones that are completely ambulatory are to some degree susceptible to fall. We’re all susceptible to gravity at sometime in our lives, but the elderly, their legs can give out, their coordination is off, their hips are deteriorating, and so what the nursing home has to do is assess their likelihood of falling. And that in and of itself can be a form of negligence, like failure to properly assess this person as a high fall risk.

Schenk Right, so I guess at the end of the day, a nursing home is not obligated to prevent every fall. What they’re obligated to do is to assess the likelihood of each individual resident and their probability of falling and taking steps to prevent the fall based on the likelihood that the individual resident would fall. So in other words, you do the assessment and then you execute the items that are derived from that assessment.

So there are two avenues in which the nursing home might be negligent in that regard. Number one is not doing the assessment. Number two is not executing the preventative items that would come from that assessment. So for example, there are different…

Smith: Well let’s talk about a case that we have right now actually where they made a huge mistake. They assessed her as requiring our client – and all our cases are confidential, we only give you generalities – our client had knee surgery and she was assessed as requiring a two-person assistance and transfer in the shower. So that means she needs two CNAs when she stands up and takes a shower – not one, two. And they didn’t do that. They only had one CNA, and that CNA wasn’t even given that much assistance.

Schenk They were like on the corner smoking a cigarette.

Smith: Yeah, well they were probably on their cell phone more likely than not. And our client tried to stand up. Her feet went out from underneath her. She fell and she busted her knee back open. So now she has to have – she already has a complete new knee reconstructive surgery that’s going to take even longer – reduces her ability to even recover from this. So that’s one way. That’s an example of failure to execute properly.

Schenk Also they assessed the properly that she needed two individuals to assist in ambulating, but they only gave her one and that one figuratively was out smoking a cigarette, so in essence, they did not execute properly.

We’ve had another case in which – and I guess it would help to talk about this, but in the assessment, there are lots of factors that deal with risk and risk of fall. So for example, we’re talking about seniors, but being of an advanced age, so 85 years or older, that adds an element of risk. Certain types of residents that are on various types of medication adds to the risk. So in other words, there’s a checklist and there are different types of checklists, one being the Morse…

Smith: The Morse Fall Assessment.

Schenk Correct, but there are different types of assessments and one has to be done, and those are some of the indicators that you fill in, and based on that, it pops out a number, pops out a scale and then you take preventative action.

So we had a case where we had an 89-year-old dementia sufferer with an unsteady gait, so she could walk but she needed a walker or assistance, was allowed to be by herself, and they didn’t even do an assessment at all, so they struck out on both accounts. So they didn’t do an assessment, and if they had done an assessment, they weren’t executing any of the precautions. So anyways, falls are one way and those falls result in all kinds of injuries. You have fractures…

Smith:strong> …Head injuries… And that leads us into the other method, not method, but the other avenue of negligence that leads to death again, and that is that a lot of times, individuals will fall. It typically ends up being a fall that does some sort of trauma. That’s the most likely method of trauma for nursing home residents is a fall, is gravity, and they’ll fall, hit their head, maybe break a bone and nobody knows about it, nobody says anything. They don’t take them to the ER. I think if you guys have been listening to the podcast, you remember the story about the guy in the van who was thrown off the van lift, broke her neck and they didn’t take him to the ER.

Schenk In other words…

Smith: Failure to treat.

Schenk Correct. In other words, the negligence might have caused an injury, but that’s not where the real claim or the lawsuit is going to come from. The lawsuit, the claim, the damages come from what the nursing home staff does after the injury.

Smith: Or fails to do. For example, it could be that Ms. Johnson is walking down the hall and another nursing home resident bumps into her. Ms. Johnson falls and hits her head. The nursing home didn’t cause the fall. Let’s assume they weren’t negligent somehow in causing the fall, but then they don’t do anything else. They don’t do a neurological examination, an eye test. They don’t take her to the ER to get her checked out, and then let’s say this individual’s on Coumadin, which is a blood thinner, and she doesn’t wake up two days from now because she had a subdermal hematoma…

Schenk Hematoma.

Smith: Hematoma.

Schenk You might be listening to this in the morning, but it’s late in the afternoon when we record this.

Smith: Subdermal hematoma… And it kills her, and the reason that she died is because they failed to take her to the ER. If they had taken her to the ER in time, and these are the types of cases that we’ve had, they’ve taken her to the ER in time, the doctor would have been able to save her.

Schenk And these are just a few of the examples of neglect injuries.

Smith: And another type, the last type we’ll talk about right now, is malnourishment, dehydration. These are extremely sad cases and what tends to happen is the main cause, the main avenue of negligence in this that I’m familiar with is simply not feeding the individual. There are other possible ways, not regulating their diet, but the most common that I see is simple CNAs who are extremely busy, have a lot of people to feed, and essentially will walk into somebody’s room and say, “Hey Mr. Johnson, I’ve got your dinner here,” and Mr. Johnson’s either out of it or he’s got dementia or he’s grumpy or whatever and he’s like, “I don’t want to eat,” and they’re like, “Okay, sounds good to me. See you later. He refused to eat,” right? No. That’s not what you need to do.

It’s time consuming, but what I would always do is I would get that person to eat or I would tell my charge nurse, “Hey, we need to contact the family because this person’s not eating and that will kill them.” That’s how serious it is. You have to eat and you have to drink water.

But a lot of times, staff will be busy and if they get any pushback, “Well I tried to feed her, but she said she didn’t want anything,” and you’ll have an individual, like the individual we have now, who went a week without any food or water. Think about that. A week without food… How she did not die is beyond me.

And going back to sepsis, another thing that dehydration can cause is urosepsis, because the kidneys flush out toxins in the body, and if they don’t have enough fluid to do that…

Schenk And renal shutdown.

Smith:strong> …Renal shutdown, and those toxins can build up and you’ve got your sepsis. So yeah, failure to make sure that they’re eating and drinking…

Schenk So that can happen after pretty substantial neglect, which leads us to the topic of abuse. Earlier, I want to earlier, in the early fall of 2016, switching gears a little bit to abuse, Medicare expanded – this is interesting – Medicare expanded the definition of abuse to encompass what we would call basically privacy rights. So a memorandum was released in which now inspectors and individuals that are surveying nursing homes need to be cognizant of is policies regarding photography of the residents.

So here’s an excerpt here from the memorandum: “If a photograph or recording of a resident or the manner it is use demeans or humiliates a resident, regardless of whether or not the resident provided consent and regardless of the resident’s cognitive status, the surveyor must investigate federal requirements related to abuse. This would include, but is not limited to, photographs and recordings of residents that contain nudity, sexual relations, bathing, showering,” on and on and on and so forth.

In other words, they’re having to review whether or not the nursing home has policies in place that would prevent the staff from taking inappropriate pictures, or maybe not even inappropriate pictures, just pictures that invade the privacy of the resident.

Smith: Well we recently consulted with an individual. She had been contacted – her mother passed away and she had been contacted by the nursing home out of the blue and they said, “Hey listen, we need you to sign a waiver saying that you’re not going to sue us because of a videotape of your mother.” She was like, “First of all, no. I’m not going to sign that. Second of all, what videotape are you talking about?”

So after I investigated, what I found out was one of the nurses had, with good intention but bad judgment, had videotaped her mother at some point to show the daughter how she behaved differently at night. She did it with her phone. The video was destroyed. The daughter having already lost her mother wasn’t really offended by it and didn’t want to go after it, but that is the type of thing they’re talking about. It doesn’t matter that you weren’t trying to make fun of this person. It doesn’t matter that you weren’t intentionally trying to demean them. It doesn’t matter that they gave you permission.

Schenk Yeah, and I think where this is coming from, and again, I think Medicare should be commended in some of these new regulations last fall, but I think what we’re coming to is we’re on about the 10th to 15th year of camera phones being prevalent, and what was that case, that poor lady, all she was wanting to do was exercise and she was in LA Fitness in Los Angeles and she was taking a shower and another person, she actually I think was a Playboy model, took a selfie of herself with that individual in the background and said something along the lines of, “If I have to see this, so do you,” in a totally demeaning way. Good thing you couldn’t see the woman’s face when she was taking the shower.

That’s the type of world we live in now because your phone can be in your pocket that has a camera on it that’s in ways better than the camera that we’re using to make this video podcast, you can humiliate and demean anybody anytime, particularly the most vulnerable people. So that’s kind of what I think Medicare is trying to prevent is just a CNA or somebody trying to take a funny picture and putting it on Facebook. They want to know, they being CMS want to know, “Hey guys, what are you doing in terms of your policies or guidelines to prevent this, to week it out?”

Smith: You know what’s crazy is I was just trying to think about how much cell phones played into when I was a CNA. When I first started as a CNA, I didn’t have a cell phone. Nobody had a cell phone.

Schenk Not even a flip phone?

Smith: No, nobody had a flip phone.

Schenk Wow.

Smith: Yeah, but nowadays, I mean they are better cameras. My mom actually asked for a handheld camera and I was like, “Mom, it’s not as good quality as the phone that you have.”

Schenk But you know, that just goes to show the technology advancements that we’ve had, I mean there’s more technology in the mixer that I have in front of me for this podcast than there was to use to record the Beatle’s White Album.

Smith: Oh yeah.

Schenk And Medicare, to its credit, is trying to keep up with that.

Smith: Yeah, and the issue is like, look, you don’t need to… Just in case the staff is unduly influencing somebody who is cognizant, anytime you videotape them or make a recording, we’re going to investigate it and we’re going to assume that maybe this is abuse. And I like that. I think it should be that way.

Schenk And speaking of recording the Beatle’s White Album, I feel that we’ve accomplished that in this podcast today, a lot of entertainment value… I don’t even know like what’s on the White Album. I have no idea. I’m not a Beatles fan. Is that “Cuckoo Could Chew?” “I Am The Walrus?”

Smith: No, that’s Sgt. Pepper. I can’t remember right now, dude. It’s been too long of a day.

Schenk Okay.

Smith:strong> “Why Don’t We Do It on the Road?” “Hey Jude.”

Schenkstrong> “Hey Jude” is not Wings?

Smith: No, that’s definitely not… Wings is just Paul McCartney.

Schenk And Michael Jackson.

Smith: That was one song, maybe.

Schenk Well that concludes our podcast, so we’re very much appreciative of you joining in. Again, this is a video podcast. You can watch us or listen. You can listen by downloading the audio portion of this podcast on Stitcher or iTunes or you can watch on or on YouTube. New episodes are available every Monday morning. We hope that you enjoyed this episode and that you’ll download or watch in the future, and until then, we’ll 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 – That’s See you next time.