Are nursing homes liable for infections in residents?

Episode 98
Categories: Neglect & Abuse

Are nursing homes liable for infections in residents?

According to some recent studies, over 1.5 million people live in nursing homes or skilled nursing facilities in the USA. Among those residents, over 2 million infections occur annually. Infections are associated with elevated rates of morbidity and mortality, rehospitalization, and extended hospital stays. In today’s episode, attorneys Rob Schenk and Will Smith discuss whether nursing homes are liable for infections.

Schenk: And welcome to this episode of the Nursing Home Abuse Podcast. My name is Rob Schenk.

Smith: And I am William Smith.

Schenk: Thank you for joining us. A lot of our lawsuits that we file, they’re generally the mechanism of injury is going to be a broken bone from a fall or a bedsore because someone wasn’t turned on a regular regiment or maybe someone has some kind of hear trauma, something along those lines. But what’s often an overlooked source of claims against nursing homes are infections that start at a nursing home that could have been prevented. That’s basically what we’re going to be talking about on this episode of the podcast.

Why are nursing homes full of infections?

Smith: Yeah. And what you need to remember are two things – one, that nursing homes, and I know that I’ve said this before because it’s something that I feel very strongly about, that nursing homes and hospitals, by their very nature, are dirty places. So when you take your kids up there to see grandma, you take your kids to see somebody in a hospital, I’ve seen too many people letting their kids play on the floor. This isn’t your living room. This is a place where bodily fluids of people and infections live, where bodily fluids are all over the floor at any given time. And this is a place where the residents typically are older citizens and therefore have weakened immune systems. So nursing homes are very dangerous places for infections.

Schenk: Yeah, and so just right out of the gate with regard to certain types of infections the nursing home itself or the nursing home staff have a duty under federal and state law to follow orders from the physicians that prescribe treatments to the residents. So many of our cases, particularly the bedsore cases, you’re going to find that the physician says, “The wound needs to be cleansed with a particular type of wound cleanser. It needs to be packed with a particular type of gauze or the dressing needs to be replaced as needed or if soiled.” These types of things would be written into an order. And the staff at the nursing home has a duty, an obligation to fulfill those physician’s orders. And aside from just getting the wound better, part of the reason you have a physicians’ orders with regards to wounds, with bedsores or just surgical incisions, these types of things, is to prevent them from getting infected.

How is a nursing home liable for infections of residents?

And so long story short, what I’m saying is that in terms of being liable for an infection in a nursing home, that is one of the avenues in which a facility might be liable is if the physician’s order is clear and appropriate, but for whatever reason, the nurses or the CNAs or whoever it is do not implement those physician’s orders, and as a result, the wound stays dirty and an infection results. That is one way that a facility could be liable.

Smith: In addition to the requirement that they follow physician’s orders, all healthcare workers, if you’re in a hospital, you’re in a hospice situation, any healthcare worker has to follow universal precautions. And universal precautions are the approach that we use in healthcare to treat all bodily fluids and all blood as having blood-borne pathogens like HIV or something similar. So in other words, there’s an old saying with gun safety – you treat every gun as if it’s loaded. The same thing with healthcare – you treat every bodily fluid, all blood, every patient, as though they had an infection. And the reason we do that is to protect them, to protect you, to protect other patients.

So you have to wear gloves whenever you’re taking care of somebody. You’ve got to wear gloves. If you’re checking out a wound, you’ve got to wear gloves. You have to wash your hands before. You have to wash your hands after. There are other certain things that you have to do that have to do with if you’re ever in somebody’s hospital room, you’ll see a red container on the wall. It’s called the “sharps container.” So whenever you stick somebody with a needle, even if it’s just a pinprick or a diabetic test, it has to go in the “sharps container.” You have to wear certain other protective clothing depending on the procedure you’re doing, but those basic, universal protections are treating everybody as though they were infected with a blood-borne pathogen to prevent the spread of infection because you don’t know. Absolutely.

Schenk: That’s right. And as an offshoot of that, every facility under federal and state regulations is required to keep the facility clean, essentially. So we see oftentimes when we take a new client, we go to the Nursing Home Compare website, look for the most recent two or three years-worth of surveys, inspections, we’ll go get that information from them through the Freedom of Information Act, and we’ll see that. And some of these facilities, which are really some of the worst places, will be cited for that, will be cited for dirty bathrooms. We just looked at a case a couple days ago where soiled bedpans were left scattered around the room and the bathroom.

What are universal precautions for prevention of infections?

So in short, that is another way in which a nursing home can be liable if they’re not following universal precautions, if they’re not following doctor’s orders, but if they’re also, from a general standpoint, not keeping facilities in a clean and sanitized condition. So Will’s oftentimes talked about in his days of working in nursing homes, when you walk in there, does it smell bad? And sometimes that can be an indicator if they’re not following the rules of keeping the facilities, which can in turn lead to infections.

Another thing that could make the nursing home on the hook for infections is the concept of ADLs, activities of daily living. Activities of daily living are the things that we do every day as humans. We tend to our personal hygiene. We bathe. We get dressed, shave, these types of things, and that doesn’t stop just because you’re a resident of a nursing home.

Some residents are candidates for infection

So generally, residents will be categorized into a couple of categories in terms of their need for assistance for those daily living activities. So the first one will be what level of dependence do they have? Are they totally dependent of every component of a particular activity? Or can Ms. Johnson feed herself once the food has been put in front of her? Or can Mr. Johnson, laying in bed, use the bedpan without any assistance, but maybe she can’t get up to walk to the bathroom? What level of dependence does she need on these various daily activities?

The second component is to the extent that the resident needs help, how many people are required to provide that help? So maybe it’s a one-person assist to help Ms. Johnson get out of bed. Maybe it’s a two-person assist depending on several other factors. But I guess the point that I’m driving at is with regard to bathing and personal hygiene components, not necessarily just wound care or anything like that, but from a bathing standpoint and a personal hygiene standpoint, if a resident requires total dependent or at least some type of limited or even extensive or even limited assistance and the nursing staff does not provide that assistance, then that’s a possibility that they might be on the hook if a wound gets infected or an infection develops because of that.

We have a case that we’re working on right now for I guess a nursing home in southern Georgia where an individual there had abrasions and wounds in between his toes. And in between his toes, once he was discharged to go to the ER for pneumonia and a UTI, it was discovered there were maggots living in the wounds in between his toes. And then they do some labs and cultures and come back that he has sepsis, and the sepsis was linked to it, and it had maggots in it. So we look back at the ADL log for the week prior, the week-and-a-half prior, because the ADL log, he was an extensive to total dependent on activities for daily living. So it wasn’t like he was getting himself dressed. But we looked back at the logs for those time periods, and it’s showing that he wasn’t bathed for a week, and it’s showing that he was not dressed, so they’re not doing their jobs here.

Check your loved ones for symptoms of infection.

Smith: And just to jump in real quick, if you’ve got a loved on in a nursing home, socks are something that you need t check out, because what can happen is it’s very easy for CNAs to get in the habit of giving somebody a bed bath, for whatever reason. Let’s say somebody’s required to be bed bathed because they’re not supposed to move or leave the bed. And then what happens is they fall into a pattern of just giving this person a bed bath, because it’s quicker and easier than getting them up sometimes, taking them all the way to the shower room and giving them a shower, because what you have to remember is that some nursing homes, a lot of nursing homes, don’t have what’s called a shower team. So that CNA who was assigned to six or seven people is not only responsible for getting them up and changing them and feeding them and laying them back down when it’s time for them to take a nap, they’re also responsible for during the day, for giving a certain number of those patients showers. That’s way too much work for one person.

And so what will happen sometimes is they’ll end up cutting corners. They shouldn’t do that, but they do, and an easy to do that is to forget to change somebody’s socks, because if it’s out of sight, it’s out of mind, and you end up not realizing what’s going on below the knees with those socks. So if you’ve got a resident who has socks on and you go up there, take their socks off. Look at their feet.

Schenk: Yeah, and that’s another. We’re going into mediation in the next, I don’t know, few weeks if we can get to it before Christmas. We’re going into mediation in another case that was the same principle where there was a massive wound on the foot that was undiscovered because the individual’s wearing a boot heal and socks and they were never changed. And so this wound became radically infected and ultimately cost the resident his life.

Infections may arise from existing wounds.

So that’s another way. I’m sorry – to sum up this, there’s no following physician’s orders, not following universal precautions, not keeping the facility clean as per federal regulations and essentially not doing the hygiene bathing portions of your activities of daily living depending on how dependent the resident is on it.

But another way is just following the appropriate standard of care in tending to wounds, and when I say wounds, there are all kinds of reasons why a resident of a nursing home is going to have a skin tear or an open part to their body. It can be from recovering from a surgery. It could be a diabetic ulcer, a bedsore, stasis ulcer, severe edema, an abrasion that could be from dragging them across the bed, scabs, anything you can think of that’s an open wound to the skin. There are lots of reasons for them.

But not following the standard of care in treating that wound, in causing that wound to heal effectively, so one of the ways in many of our cases, in particular, bedsore cases, is that once there is an opening to the body, like a stage one or a stage two bedsore, that represents a significant change in condition to the resident and they’re required to alert both the family and the physician. So a physician can go and appraise the situation, so they might go, “We need to start a new protocol, a new intervention to prevent infection and treat this wound, whatever it may be.” And so when the nursing staff at the facility doesn’t do that and an infection occurs, then they can possibly be on the hook for that infection.

In terms of proving these cases, like it’s one thing – I guess what I’m trying to emphasize is there’s a difference between should the nursing staff have prevented whatever the wound is. That’s the first question. That’s the threshold question. Are they responsible for the wound itself? So that has its own measure, has its own burden of proof to prove and its own measure of damages. So we’ll set that aside. Then the issue is if an infection occurred, did the nursing staff at the facility do or not do something they should have done to prevent that infection, and that’s the basis of a claim you can make against the facility for the reasons that we set forth earlier this episode, because the nursing staff, in order to be liable for an infection, they have to have done or not done something to cause that infection. And then the next component to that, to a claim like that…

Smith: Well it’s also extremely important, and this is something I think we’re going to be talking about in an upcoming episode, whether or not they’re liable, also what has it’s done to the resident? So if it’s a UTI that turned into urosepsis that killed them, you’re probably going to want to make a claim and try to prove them liable. If they end up getting an infection that leads to pneumonia that is treated and they’re fine afterwards, you might have a case for medical bills but you’re probably not going to find an attorney to pursue that.

Schenk: That’s right. And again, I’ve been focusing on bodily wounds like that, but you’re right. Infections can occur from a dirty catheter.

Smith: Well an infection can easily occur for somebody who has dysphasia, they’re not able to swallow well. They’re supposed to be on thickened liquids. They’re on thin liquids – somebody messes up. They suck it down the wrong pipe. They get aspiration pneumonia because of an infection in their lungs because of a foreign object, and that can kill them.

Schenk: Right. And so I guess we’re always going with that is in order to show that the nursing home is liable for the infection, you’re going to have to have lab results and you can connect based on the lab results and the wound of the infection or where it originated from, you connect the dots that way with expert testimony.

What is a MRSA infection?

Smith: And Rob has pointed this out, but it’s really important that you understand that just because somebody gets an infection, because I get this call a lot – somebody will say, “My mom ended up MRSA,” which is a multi-strain resistant staphylococcal bacteria. It’s just a particular bacteria, because understand, antibiotics kill bacteria – they’re not for viruses. And bacteria, according to evolution, have an ability to evolve based on the difficulties of their environment. And so one of the difficulties that bacteria face is this onslaught of antibiotics, and so they have evolved to be resistant to all the bacteria you would have.

Can they be liable if your mom develops this multiple resistant bacteria? Again, did they breach the standard of care? Did they fail, like Rob said, to follow doctor’s orders? Did they fail to follow universal precautions? Because at the end of the day, your 90-year-old mother has a decreased immune system and a decreased ability to fight off disease because your skin is your first line of defense, and as you get older, your skin, which is an organ, starts to break down. In addition to that, your immune system is breaking down. So it isn’t just that your mother got sick or she got an infection. Are they liable? Have they somehow failed to do something that caused her to get the infection?

Schenk: That’s right. And again, with these types of cases, the nursing home is going to have their own line of doctors and experts to say, “This infection came from some other thing,” or “Even if they did what you said, they would have gotten it. Even if they did everything they’re supposed to, they would have gotten it anyways.” These cases are, in our experience, a little more difficult than say an average trauma to the head from falling down because there’s so much science, for lack of a better word, science behind it.

But we saw an article from a couple of months ago that kind of highlights this point, but it’s out of – what do we’ve got here? – it’s out of Charleston, West Virginia.

Smith: Kanawha.

Schenk: Kanawha.

Smith: Kanawha County.

Schenk: This is a lawsuit filed in Kanawha County against Dunbar Nursing Home? No, a Dunbar nursing home.

Smith: Which is owned, I think, by Genesis Healthcare, which also owns several facilities in Georgia. It’s one of the big healthcare companies that owns lots of nursing homes.

Schenk: Right. So she had a surgical wound when she was admitted and there’s the complaint says that the nursing home failed to provide the quality care, and she suffered – let’s see…

Smith: So what happened is she – I can tell you by the way that this is written, it sounds like she had a knee surgery or a hip surgery and that she had surgical wound dehiscence, which is a hardware exposure, so in other words, the surgical wound came open. Something happened. I’ve had that happen to me before, stitches broken, or I’ve had residents where they had stitches and they fell and the stitches came open. So it’s opened back up. And either the hardware, like an artificial knee or an artificial hip was exposed, which like I just said, your skin is your first line of defense from infections, so her skin has been compromised. Her insides have been exposed, and then she gets a wound. And they also failed to treat her for infection.

Schenk: Yeah, so she got – the wound got infected and that’s the first part is that she had to be treated for this infection. She had to actually go through another surgery to correct the damage that was done.

This is out of New York. This is Sotis Nursing Home and Rehabilitation Center and this is just a case that was covered by the local news over there, and I’ll show you the video. It can be pretty graphic, but a woman had a wound on her leg that became so infected with MRSA that she nearly had kidney failure, and there was a ton of fluid in her leg that smelled really bad and the nursing home didn’t do anything about it, and it was actually the dialysis center, she was getting dialysis, that alerted the state authorities to it. But it’s resulted from allegedly just soiled gauze that remained in the leg, like they obviously were not following any protocol, but they specifically were not following any doctor’s orders in terms of cleaning the wound, and they found just soiled gauze inside of it, and you can just see from the video that it was just horrific.

And this also echoes a couple of cases that we filed earlier this year that were almost the same, except these were from bedsores where the nursing staff, there’s a stage three or a stage four bedsore that develops, and they don’t clean the wound. And in our instance, the wound was filled with just soiled gauze, because this was a bedsore to the sacrum, so this was soiled with feces, and sepsis developed, and in one instance nearly killed our client and in the other instance did kill our client. So infections from these wounds, it can be very dangerous. That’s why we’re talking about it.

But as we always say, you want to stay vigilant. The warning signs of infection that you can observe without being a medical professional include higher perspirations – what am I saying? Like faster breathing.

Smith: An actual wound.

Schenk: Yeah, an actual wound.

Smith: That seems pretty obvious, but it’s something you can overlook. That’s why I was saying take people’s socks off. Look at your loved one’s body. Do they have wounds? Does it look like they have an infection? The smell.

Schenk: Smell.

Smith: If you walk in there – it’s just a fact of life. We’re humans. We have bodies and we release fluids that occasionally your loved one may go to the bathroom and it’s not changed immediately, it’s not going to be. It’s not possible. And it may smell like feces. But if it consistently smells in their room, then there’s the potential that somebody has an infection.

Schenk: Yeah, or a lot of discharge can be a sign of infection.

Smith: Yeah. Altered mental status.

Schenk: I was going to say, that’s one of the main ones. If there’s an altered mental status, we need to get on the horn to somebody, let somebody know because you’re getting more and more – your body is being more and more affected. It may be shutting down.

Smith: Yeah, because it may not be a wound-induced infection. It may be something that the infection is internal because of a UTI or…

Schenk: Something like that. Well I think that’s about it for this episode. Let’s see. Oh, next week will be our last episode of the year.

Smith: Of the year. And it will be the 99th episode, so we’re not sure what we’re going to do for our celebratory hundredth episode.

Schenk: That will be the 1st of the year.

Smith: That’ll be in 2019.

Schenk: Yeah, this is interesting. I can’t believe it’s been this long. Anyways, you can…

Smith: Ninety-nine episodes.

Schenk: Yeah. We encourage you to go one through 98, go backwards and catch up.

Smith: Over the holidays.

Schenk: And binge.

Smith: Over the holidays, binge watch all 98 of these podcasts over the holidays.

Schenk: Yeah. New episodes are available every Monday on Stitcher, iTunes, Google Play, Spotify or on YouTube or on our website, And with that, we will see you next time.

Smith: See you next time.