Nursing Home Abuse

The Importance of Pre-Employment Screening of Nursing Home Employees

September 30, 2016 | Lebowitz & Mzhen

When someone can no longer care for themselves, and their loved ones are also incapable of providing the necessary level of care, many families turn to nursing homes. Nursing homes are charged with caring for those who cannot fully care for themselves, and the duties that come along with this are varied and often depend on the condition of each individual resident. However, some duties are present no matter the condition the resident is in, including providing a safe environment that is free of abusive and neglectful staff.

One way that nursing homes are able to ensure the quality of the nurses whom they employ is through pre-employment and background checks. These checks look into the past of the applicant nurse to determine which other positions the nurse has held, whether there have been any disciplinary actions taken against the nurse, and whether the nurse has any past criminal convictions. Not only are these types of checks legal, but also they are necessary to ensure a safe nursing home for all residents.

Investigation into Nursing Home Abuse Discovers Management Did Not Perform Pre-Employment Background Checks

Earlier last year, nursing home aides at a New York nursing facility taunted an elderly resident and then took pictures of the abuse. After the discovery of this behavior, an official investigation was conducted, which revealed that the nursing home employing the aides had failed to conduct pre-employment background checks on four of its newly hired employees. It was also discovered that the nursing home failed to provide any abuse prevention training and even failed to follow up on reported cases of abuse. According to a recent news article discussing the facility’s deficiencies, the nursing home has a one-star rating and had 24 deficiencies total in 2015 and 2016. This amounts to more than four times the state average.

Federal Government Expands Regulations to Protect Nursing Home Patients from Other Types of Abuse

August 19, 2016 | Lebowitz & Mzhen

The federal government has recently announced plans for new regulations that will crack down on the problem of residents being abused by nursing home employees. Specifically, the new regulations are designed to target a recently occurring problem of nursing home employees taking demeaning photographs and videos of residents and sharing them on social media sites. Recently published articles by a patient advocacy group have documented the worsening phenomenon and the federal response.

The Federal Government Can Use Medicare to Urge States and Nursing Homes to Prevent Abuse

Most nursing homes are administered by private organizations or state or municipal governments, but the federal government contributes to the costs for each resident in a vast majority of those homes in the form of Medicare payments made on the resident’s behalf. Although the federal government generally lacks direct regulatory authority to compel state or privately run nursing homes to implement certain policies, it can tie compliance with anti-abuse policies into the nursing home’s receipt of Medicare funds, which often comprise most of the payments the nursing homes receive.

Nursing Home Arbitration Clauses May Punish Patients and Families For Expecting Quality Care

August 5, 2016 | Lebowitz & Mzhen

Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.

Why Do Providers Propose Binding Arbitration, and Why Would Consumers Agree to It?

Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.

In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.

Increasing Use of Social Media Has Resulted in Unexpected Nursing Home Abuse

July 26, 2016 | Lebowitz & Mzhen

A recently published news article discusses the difficulty that law enforcement and regulatory authorities have been facing nationwide in attempting to apply existing laws to curb the increasing pattern of “social media abuse” of long-term care and nursing home residents by health care workers. According to the article, there have been dozens of reported instances in which health care workers publish explicit photos or videos of nursing home patients on social media. The resulting posts have been offensive, hurtful, and exploitative of the nursing home patients, and they demonstrate the unprofessional levels of care that some nursing facilities provide.

Current Laws Addressing Nursing Home Abuse May Not Go Far Enough

According to a recently published report noted in the article, current laws in many states protect nursing home patients from social media abuse by making it illegal for a health care worker or assistant to post an image containing a resident’s genitals on social media. Unfortunately, many of the abusive and humiliating posts that have been made don’t include an image of a patient’s genitals but remain extremely offensive. One such post mentioned in the article included an image of an elderly resident’s hands and legs covered in feces, accompanied by a caption that contained profanity and made fun of the man.

Court Holds Failure to Comply with Mandatory Nursing Home Abuse Reporting Requirements May Give Rise to Liability

May 20, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Washington issued a groundbreaking opinion extending potential liability in a nursing home abuse lawsuit to nurses who were required to report discovered instances of nursing home abuse but failed to do so. In the case, Kim v. Lakeside Adult Family Home, the court determined that the Abuse of Vulnerable Adults Act (AVAA), a state-enacted law to protect the elderly, creates a separate cause of action against those who are required to report discovered instances of nursing home abuse but fail to do so.

The Facts of the Case

The plaintiffs in this case are the surviving loved ones of an elderly woman who was given a lethal dose of the pain-killer drug morphine. The drug was not prescribed by a physician but was administered by a nurse who was not a party to this lawsuit.

The defendants were two nurses who were not employed by the facility charged with caring for the deceased, and they were in no way responsible for her care. Both defendants were caring for another individual at the facility when they witnessed what appeared to be lapses in care. On March 28 or 29, one of the defendants witnessed the deceased lying on the floor. The defendant confronted the other nurse, who told the defendant that the patient “falls a lot” and that it was nothing out of the ordinary.

Nursing Home Resident Dies After Being Left Outside in the Sun

May 13, 2016 | Lebowitz & Mzhen

Nursing homes should be places where people can feel at ease placing their aging parents to help them get the medical care and attention that they need in their final years. However, the reality of what nursing homes have come to become in our society is far from that. Partly since nursing homes operate on a for-profit model, the level of care provided to patients is secondary or tertiary to other concerns, including staffing costs.

Just as in any other business scenario, nursing homes get what they pay for when they consider whom they should hire. By hiring inexperienced nurses or those with poor records or care, nursing homes may be able to save a few dollars in the short-term but place their patients at risk. Indeed, these are the very nurses who are likely to act in abusive or neglectful ways when placed under stress.

However, working in a stressful environment is no excuse to neglect or abuse another human being who has been placed in your care. For these reasons, the State of Maryland allows nursing home residents or their families to bring lawsuits against nursing home employees and management in situations in which the nursing home failed to adequately care for their loved one.

One State Considers Banning Anonymous Abuse Complaints in Nursing Homes

April 28, 2016 | Lebowitz & Mzhen

Nursing home abuse is a tragic phenomenon, and everything should be done to curb it. Whether it be an overworked nurse who snaps at a difficult resident, or an angry employee who takes out their own aggression on those who cannot fight back, there is no excuse for engaging in nursing home abuse. However, the sad reality is that nursing home abuse is grossly underreported, with many residents afraid to report the abuse of those who are responsible for their daily care out of fear of reprisal.

Despite that fact, one state is considering a bill that would eliminate a person’s ability to anonymously report nursing home abuse. According to an article by U.S. News and World Report, Illinois legislators are considering a bill that would require each complaint of nursing home abuse to be accompanied by the reporter’s name. If the person calling does not want to provide their name, the report will not be filed.

Of course, doing away with anonymous reporting will limit the number of complaints of abuse, which is why the nursing home industry is in favor of the bill. In fact, about 20% of all abuse allegations currently reported are done so through anonymous calls. While the bill’s sponsor claims that the names of reporters would be held confidential, the mere fact that callers are require to disclose their identity will likely result in fewer calls.

Politicians Speak Out against Nursing Home Abuse Posted on Social Media

April 7, 2016 | Lebowitz & Mzhen

The thought of a nurse who is charged with the care of elderly individuals engaging in a pattern of abuse against his or her patients is bad enough, but lately there has been a rash of cases in which abusive nurses are filming the abuse and posting the videos on social media. The victims in these videos are almost always mentally or physically ill nursing home residents who do not have the ability to fight back or even to ask their abusers to stop.

Of course, this kind of conduct is a violation of the duty of care that all nurses have to their patients. In fact, this duty of care extends beyond just licensed nurses and applies to anyone charged with the care of another person in a skilled nursing facility. When this type of abuse is discovered, the abused individual or their family may be able to seek financial compensation for the abuse and humiliation suffered through a Maryland nursing home abuse lawsuit.

Politicians Condemn Nursing Home Abuse, Seeking More Prosecutions

Aside from being a violation of the duty between caretaker and resident, nursing home abuse is also against the law. In fact, according to one news report, the Chairman for the Senate Judiciary Committee has been probing the U.S. Justice Department about how aggressively it pursues cases alleging nursing home abuse that has been posted on social media.

When Nurses Are Criminally Charged for Abuse of a Nursing Home Resident

March 21, 2016 | Lebowitz & Mzhen

Abusing an elderly nursing home resident is a disgraceful act that is clearly in violation of a resident’s rights. Indeed, such conduct can result in both civil and criminal liability. In most cases of nursing home abuse, the criminal case will proceed to trial before the civil case. This can help the families of abused residents who are considering filing a claim against the nursing home because much of the investigation will already have been completed by the authorities. In addition, if the criminal case against the nursing home is particularly strong, this may incentivize the facility to consider a substantial settlement and keep the case from going to trial where even greater damages may be awarded.

When a nurse is found guilty or pleads guilty to a criminal offense involving the abuse of a resident, that will not automatically mean that the resident or the resident’s family is entitled to monetary compensation. A criminal prosecution is brought by the government, and seeks to implement a punishment against the nurse or facility. This may involve time in jail, probation, or a substantial fine. While a criminal court can order some restitution, it would not likely be a significant amount.

A civil case, on the other hand, is brought by those personally affected by the nurse’s conduct, and seeks monetary compensation for the physical and emotional injuries caused by the abuse. These cases, if successful, can result in significant monetary judgments against nursing home management, especially if punitive damages are sought and proven.

Nurse Charged with Abusing Patient and Falsifying Business Records to Cover It Up

February 15, 2016 | Lebowitz & Mzhen

Nurses, like doctors and other medical professionals, are held to a high standard. Like nurses elsewhere, nurses in a skilled nursing facility are charged with caring for people who are not capable of caring for themselves. Specifically, these nurses care mostly for an elderly population who often suffer from advanced forms of physical and mental illnesses and diseases.

However, nurses are humans and are prone to making mistakes, making errors in judgment, and becoming frustrated or angry. Unlike many other medical professionals, however, nursing home employees are often left alone with their patients. This leads to a situation in which a nurse can, unfortunately, act with impunity in regard to how they interact with their patient. In some cases, even when residents report that they have been neglected or abused, the nurse responds with a blanket denial, knowing very well that it will be difficult to prove a case against them.

Nurses have even been known to go as far as altering the nursing home records in an attempt to cover up what happened between the nurse and the resident. That is exactly what is alleged to have occurred in a New York nursing home earlier this month. According to one local news source, a 28-year-old nurse was accused of abusing one of her patients back in December of last year. Specifically, the nurse allegedly slapped the elderly patient’s hands and wrists against a bedside table, covered her mouth, and threw her feet around in a rough manner.