Is it possible for a nursing home resident’s non-compliance to cause neglect? In other words, is it a non-compliant’s fault if he or she is neglected by the nursing home? No. Federal and state laws say that residents have the right to refuse or decline particular treatments. But what is the responsibility of the nursing home for delivering care when a resident is non-compliant?
Simply for the fact that a resident has exercised her choice does not allow the nursing home to give up or neglect their duties. In this week’s episode, we explore the relationship between a resident’s right and the obligations of the nursing home for finding alternatives.
Hello out there. Welcome back to the podcast. My name is Rob. I’m going to be your host for this episode. We’ve got a great episode. We’re going to be talking about residents that are declining or rejecting care, noncompliance with the care plan, and the ramifications and liability of the nursing home if a resident does so. But before we do that, I would love it if you could like and subscribe to this podcast wherever you get your podcast from. If you are watching this on YouTube, please feel free to subscribe there, leave a comment, hit the notification bell. If you are interested in this content and want to know more about a particular subject, reach out to us and let us know. We would love to hear from you. And with that, let’s actually get into it.
So it’s no uncommon for my firm to receive calls or have clients come in and say, “Well my grandmother, my dad,” whoever else it is, “Well they didn’t want to eat,” or “They didn’t want to be repositioned,” or “They didn’t want a particular type of medicine.” And somewhere down the line, chronologically, that person was injured. And because of that behavior that they exhibited that client was telling me about, they think that the nursing home might be off the hook, or maybe the nursing home is saying they’re not on the hook because of that behavior. What is the law when it comes to that? What are the duties of the nursing home if a resident is not “doing what they’re told?”
Well from a broad standpoint, the only person that’s in charge of that resident is the resident. That’s one of the resident’s principal rights as a human. They can make their own decision even though we might love them, him or her, very much. We might be in that family circle with them. We might be the one that’s visiting them every day. Ultimately Grandma or Grandpa, Mom or Dad or spouse, whoever it is, is the ultimate say-so in what care is delivered to them.
So as I read from the nursing home MDS manual, this is the resident assessment instrument manual that the federal government issues with regard to how residents are assessed, and this provides guidance to nursing homes with regard to all sorts of things, but in that manual, it says the resident’s care preferences reflect desires, wishes, inclinations or choices for care. Preferences, as we mentioned, do not have to appear logical or rational to the nursing home. Their preferences, the resident’s preference, does not have to show good judgment. It could be contrary to medical device or to medical advice, I should say. It comes down to the resident’s choice. A resident has the right to make whatever choice they want.
The issue and reality, nine times out of 10, nine times out of 10 cases that walk in our door, the issue is is it really a choice? Is the resident making a choice? From many standpoints, the answer is no from cognitive capacity or impairment to chronic disease to medications, things that would affect the person’s ability to make a choice freely. And that’s really the issue. It’s not just did Ms. Johnson refuse to be turned or did Mr. Johnson refuse to eat breakfast today or breakfast every day? It’s is that an actual choice based on that resident’s preferences, desires and wishes? And most of the time, it is not because obviously if a person is of what we would call sound mind, if a person can make decisions and they do elect not to eat their vegetables, then that’s really not considered a problem. It’s not considered an issue because like we said, they have the right to do that. The issue comes when, okay, this person has a chronic mental illness and does not have the capacity to make choices based on their preferences. So when Ms. Johnson is refusing to be turned, there is a reason that’s happening other than their choice, and that is what needs to be investigated by the nursing home and that is what occurs after that can mean that the nursing home is responsible or liable for whatever injuries result from that rejection or declining of care or not. That’s the issue here.
So by definitely, rejection of care is behavior that interrupts or interferes with the delivery or receipt of care. Care rejection may be manifested by verbally declining or statements of refusal or through physical behaviors that can convey aversion to or result in avoidance of or interfere with the receipt of care or hindering the delivery or receipt of care by disrupting the usual routines or process by which care is given. Again, that’s from this manual.
So at the end of the day, when the noncompliance, when the rejection of care is a result of some type of neuropsychiatric medical or dental problem, it’s not a matter of, “Okay, that’s just what Ms. Johnson wants.” Now it becomes a matter for the nursing home and the nursing home is obligated to assess why the noncompliant behavior is occurring. Does that make sense? So particularly when there is a resident that you cannot ask, “Hey, why are your doing this, Ms. Johnson? Why are not wanting to be turned?” typically we’re not dealing with that. We’re dealing with someone who would not be able to answer that if you asked them directly. So that has to be assessed and dealt with.
And so it’s the same as we’ve talked about on this podcast many times before – every resident is required to be assessed head to toe. Based on that assessment, a care plan is created, and that care plan is the blueprint of what type of care is provided of that resident, and the care is personalized, like it’s not just cookie-cutter, like, “Oh, here’s the care plan you get.” No, the assessment dictates what goes into that care plan and that care plan is not the same from resident to resident. And that’s the second part. You’ve got the assessment as number one, care plan number two.
The third thing is you revise the care plan where appropriate. And so whenever there is a rejection of care or there’s noncompliance, then we’ve gone to that third part of that circle, which perhaps we need to revise the care plan, which itself means we need to reassess what’s going on. We have to assess why there’s noncompliant behavior. Based on that assessment, we have to revise the care plan, and again, once that happens, we implement a new care plan. And if we need to, we revise it again.
So what’s that first step with regard to rejection of care, noncompliant behavior? The first thing is the nursing home should review the medical records. So sometimes the noncompliant behavior might be the result of a recent surgery that’s reflected in the chart. So a lot of times you have a nursing home resident that’s come in from the hospital due to some type of surgery and they’re in the nursing home for rehab. So if the individual is rejecting care, maybe they’re rejecting physical therapy, perhaps looking at the chart you’ll realize, “Oh, well maybe they’re experiencing pain and therefore based on that, maybe we need to get them a different type of medicine,” or “Medicine’s not working.” So starting with the review of the medical records is kind of the first part of your assessment into whether or not it’s a choice that the resident is being noncompliant.
Then the nursing home should, in this assessment, talk to other staff members. So when you’ve got the first shift, second shift, third shift – “Hey guys, what have you seen with regard to this particular type of behavior? Maybe it’s due to something?” So in other words, talking to different staff members in the different shifts, maybe you realize there’s some type of pattern. So for example, if someone is being defiant with regard to hitting their snack at night off the table, maybe they’re refusing their after-dinner snack, maybe that has something to do – and then you see that over the course – at the end of every second shift or the beginning of every third shift, the individual does this. Maybe this has something to do with what’s going on at that time period. It’s seasonal depression or situational depression, something along those lines that you might not uncover unless you talk to a staff member from all three shifts where you encounter a pattern. So that’s again super important that you include everybody in on this assessment in terms of shifts and staff.
You’re going to want to review whether or not this behavior has occurred in the past, so for example, maybe it has something to do with, okay, every time that this individual takes this particular medication, they result in being more aggressive, something along the lines of that. So if you see that in their history, maybe that’s an indication of what’s going on this time. So an assessment is not just throwing up your hands and going, “Well he doesn’t want to be turned or repositioned. We’ll see you later.” No, no. It’s once you’ve determined it’s not a choice, you have to figure out what is the reason why someone is rejecting care in some way. And again, as I mentioned, rejecting care doesn’t have to be, “Hey, I don’t want you to do this.” Rejecting care can be knocking a CNA’s hand away. It can be preventing the aide from pushing you in the wheelchair. Anything – anything that is disruptive to the pattern can be rejection of care and it’s up to the staff to do that proper assessment.
So we’ve had several cases, one in particular that was pretty recent in which the individual had dementia and developed a decubitus ulcer. And the nursing home is saying, “Well Mr. Johnson, Mr. Smith,” these are obviously fake names, “Every time I went to turn him, he would push our hands away. He would prevent us from turning him or he would do the best he could to turn himself back even though he did not have the physical ability to do that. That’s why he was turned by staff.” And what the medical record reflects is whenever he would be moved, like transitioned from his bed to the wheelchair to go to eat or to go to therapy, it was indicated that his face would grimace. And so it’s clear from that record where you have that consistent pattern of, well, he’s showing signs of pain, that it wasn’t a choice. He was reacting to the pain of having his body moved. So for whatever reason, whenever he was turned or repositioned from side to side, that hurt him and that’s really what he was reacting to, not that he was based on his preferences in his life not wanting to be turned. So that’s just an example of that. So if the nursing home had done its due diligence in the assessment, they would have found out, “Okay, maybe we need to up his pain medication,” or “Maybe we need to do something in the alternative to get him the care that he needs.”
And that brings us to the actual care plan portion of the noncompliance. That brings us to the care plan, the intervention portion of dealing with noncompliance, dealing with rejection of care, and that is once you’ve assessed why the behavior is occurring, then it’s up to you in part to figure out alternative ways to achieve the appropriate outcomes. So again, going back to the example of an individual that is accused of not wanting to be turned, what can that nursing home do instead of having two people turn or reposition that person? Perhaps a wedge. Perhaps heel raisers. Perhaps, again, medication might be an option. There are all types of things that nursing homes can do in the alternative to any one particular intervention, to achieve a particular outcome, and again, that’s the responsibility of the nursing home to do that. The name of the game is accountability simply for the fact somebody has rejected care does not mean the nursing home can throw up its hands and say, “We did everything we could. He doesn’t want to do it so tough. He gets what’s coming to him.” No. Absolutely not. The buck does not stop with the resident. The buck stops after an appropriate assessment, an appropriate care plan has been devised based on that assessment, and the care plan has been systematically reviewed once it’s been put in place. That’s when the buck can stop with the resident, only then.
So that’s what I tell my clients when they come in, “Well my family member did this.” Well what did the nursing home do instead? What did the nursing home tell you? Because that’s another thing, is that the nursing home, to the greatest extent possible, and this would be for pretty much anything, but whenever there is a noncompliance, a rejection of care, a resident declining care, the nursing home should, in the assessment process, get the family involved. “Hey, did you know that Ms. Johnson was refusing care? Did you know that Ms. Johnson was refusing to take her supplements?” Because from a bottom-line standpoint, the family has every right to be involved in that care as anybody. In fact, the federal regulations require attempts to get family involved. So whatever the risk projection of care, you should have heard about it. So if you have been told, if you’re at the hospital and your loved one has been injured and you talk to the nursing home and they say, “Well, you know, they’ve been rejecting care for the past few months,” you can say, “Well how come you didn’t tell me about it?” They have an obligation to do that and they should get you involved. But it’s just – it’s not an appropriate excuse. The nursing home should always attempt to work around any type of rejection of care like that.
So the bottom line is can you sue a nursing home for injuries even though those injuries may have been caused by a resident’s rejection of care? Now these aren’t the easiest cases, but typically they will be handled like any other nursing home neglect or abuse case, that is to say did the nursing home do something or not do something they were supposed to, which at the end of the day caused your loved one to be injured? So taking you through those steps, it would be if your loved one’s rejection of care, did the nursing home do an assessment? Was the assessment reasonable? In other words, did they just throw up their hands or did they roll up their sleeves and do an assessment of what exactly is going on? And then did they do the care plan based on the assessment? And did they ride along with that care plan and make sure to revise it when they need based on that rejection of care? In other words, they find alternatives. They find out why and they find alternatives to that care. If they fail to do those things, then they have breached the standard of care.
Now it’s a matter of did that breach of the standard of care cause your loved one to be injured? If you have evidence, if we are able to collect evidence of all of those things, then you potentially do have a claim against that nursing home even though your loved one has rejected care or has been noncompliant. But these are all fact-sensitive cases, but I’m here to tell you that just because you’ve been told that your loved one has been noncompliant or has rejected care does not mean you don’t have a case, not by a long shot. You should speak to a lawyer in your area if your loved one has been injured but you’ve been told that, like, “Well this, this and this, this, that and a third,” don’t listen to that crap. You need to talk to an attorney because hopefully that attorney will tell you the same thing I’ve been telling you. They’ll review those facts and they’ll make that determination right along with you.
But I hope that you have found this episode informative, educational. If you have any questions about this, be sure to reach out to us. The Nursing Home Abuse Podcast comes out every other week, two times a month. It is available wherever you get your podcasts from. If you’re watching this on YouTube, thank you. Appreciate that. Give us a like and hit the subscribe button. Hit the notification bell. If you are a listener of the podcast, be sure to leave a review on Apple Podcast – we would greatly appreciate that. And with that, we will see you next time.