Nursing Home Injury FAQ

A frequent cause of injury to assisted living facility residents is the facility’s failure to transfer a resident to another healthcare provider that can provide appropriate care for the resident’s condition. Some people are simply too sick or frail to be in an assisted living facility. They need a higher level of care that can be provided only by a hospital or skilled nursing facility. For example, if a resident is at a very high risk to fall, an assisted living facility will likely not have sufficient staff to properly supervise the resident to prevent a fall. Assisted living facilities are simply not designed to provide close supervision of its residents. Very serious and sometimes life-threatening injuries result when the elderly fall. Examples include traumatic brain injury and broken hips. It is crucial then that an assisted living facility accepts and continues to care only for residents who are appropriate for the level of care that can be provided. The Florida legislature has recognized this and requires that an assisted living facility obtain a medical evaluation from a doctor for all its residents. The law requires the facility administrator to use the evaluation as a part of the decision to admit a resident in the first place. The administrator is legally required to make the decision. Here is what the law says: The owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. In lawsuits against assisted living facilities, the defendant almost always tries to blame somebody else for the resident’s injury. Defendants sometimes claim that the family should have chosen another facility or should have transferred the resident. However, the law clearly recognizes that it is the administrator of the facility who has the expertise in knowing whether the facility has the appropriate resources to properly care for the resident. Thus, it is the owner or administrator, not the family, who is legally responsible to decide if an assisted living facility can properly care for a resident.

No, there is no legal requirement to write an advance directive.But, if you have not made an advance directive or designated a health care surrogate, health care decisions may be made for you by a court appointed guardian or your family.

Yes, the state requires a minimum staff to patient ratio. However, this minimum ratio may not always result in insufficient staff to care properly for individual resident needs. Because of the extreme importance of sufficient staff to the quality of care, you should ask the nursing home for information about how many staff they have for each shift. Further, you might ask one of the home’s certified nursing assistants whether they have complained to management about not having enough help to provide proper care.

In any case against a nursing home the plaintiff must prove two things: first, the defendant fell below the standard of care and second the failure caused the injury. To evaluate whether we will be able to meet this burden of proof, we take a number of actions to gather information as follows:

One of the things our nursing home malpractice clients tell us all the time is that they asked the nursing home to let them look at the medical records but the nurses or administrators would not allow it. Usually, our clients are acting as a health-care surrogate or as a power of attorney for one of their families in the nursing home. When a nursing home denies access to records it is clearly violating Florida law. The nursing home resident, a healthcare surrogate, and a person acting under a power of attorney have unambiguous rights both to see the records and to copies of the records. If a nursing home denies you access to medical records make a copy of this answer and give it to the nursing home administrator with a written request for access to the records. Make a note about what the administrator says in response. Here is what the Florida statutes say about access to medical records. Section 400.145 of the Florida Statutes regulating nursing homes provides that nursing home “shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact… of a current resident, within 7 working days after receipt of a written request, or of a former resident, within 10 working days after receipt of a written request, a copy of that resident’s records which are in the possession of the facility.” This statute also gives you the right to look at the original records. “The facility shall further allow any such spouse, guardian, surrogate, proxy or attorney in fact… to examine the original records in its possession…” The statute governing healthcare surrogates gives the surrogate the right to medical records. Section 765.205 Florida Statutes provides: “The surrogate, in accordance with the principal’s instructions, unless such authority has been expressly limited by the principal, shall… be provided access to the appropriate medical records of the principal.” Nursing home residents have the right to be treated by a doctor and the law also gives you the right of access to the doctor’s medical records. Section 456.05 Florida Statutes provides: “Any healthcare practitioner… shall, upon request of such person [the patient] or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment…” There is an exception for psychiatric records. Therefore, don’t believe health care providers if they tell you that you do not have a right to see the record. You do have the right.

Shortly, yes. If you leave your beloved one in a nursing home ,that means that you trust that they will provide care and attention to elderly.Wandering off from a nursing home can have serious consequences. If this happens to you, the best advice is to contact us, so we can discuss your case.

From our Daytona Beach, Florida nursing home and assisting living facility practice, we have noticed that assisted living facilities are dangerous for residents when the resident’s condition has deteriorated and the facility cannot provide adequate supervision. Assisted living facilities have a built-in financial incentive to admit and keep residents or patients even beyond the ability of the facility to provide proper care. Most assisted living facilities charge monthly rent. If a resident deteriorates and the facility cannot provide proper care, the facility will lose the monthly rent if it insists on the resident being transferred to another facility with skilled care and closer supervision. Thus, many assisted living facilities are reluctant to transfer patients for the greater care they need. Assisted living facilities do not provide close supervision. In fact, they are designed to provide only limited assistance. Florida law requires a facility to obtain a certificate from a doctor describing the physical and mental condition of the resident but the facility administrator is responsible to be sure it can provide appropriate skill and staff to properly care for their residents. Florida law also requires the facility not to accept residents beyond their ability to provide proper care and specifies certain areas to focus on when making the decision. These include whether a resident requires 24-hour skilled nursing care, is bed-ridden, requires restraints, may be a threat to themselves or others and may not be able to move to a safe area during an emergency without more than minimal assistance. Sometimes the failure of a facility to transfer to another skilled health care provider such as a hospital or nursing home can have disastrous consequences and may even result in a patient’s death. For instance, some assisted facility residents have been able to wander away from the building despite very significant dementia and inability to find their way back. In other instances, residents who are at high risk for falling and who already have a series of falls at the assisted living facility, are not transferred and continue to fall. We have seen falls that result in brain damage and death. Therefore, the question as to whether or not your mother is safe in an assisted living facility is one that requires very careful attention. We recommend that you carefully review the facility’s supervision and health care abilities with the administrator and with your loved one’s physician before admission to an assisted living facility and at any time your loved one’s condition deteriorates.

Ask your friends, your doctor and families of facility residents for recommendations. Ask each facility you are considering for a copy of their last state annual inspection report. Ask about the facility’s rating from the Florida Agency for Health Care Administration. You should generally choose only a facility that has the highest rating, “Superior.” Visit each facility at least twice. Because lunch and dinner are usually the busiest, visit unannounced at least once during these times to see how the facility handles resident care.

In Florida, living wills are effective until they are revoked.

A recent new law enacted in Illinois points up the importance of nursing homes evaluating both their nursing home residents and employees to determine whether or not they present a risk of violence for your loved one in a nursing home. The Illinois law beefs up existing criminal background check requirements relating to employees and requires psychological screening of nursing home residents to determine whether they are dangerous. Nursing home workers in Florida must be investigated prior to employment to determine whether they have a criminal history. Unfortunately, nursing homes do not always do a good job making sure their employees are not dangerous. In addition to criminal history checks, nursing homes should be careful about obtaining written references from prior employers to determine whether or not dangerous behavior occurred at other nursing homes. We recommend you ask the nursing home administrator whether there has been a thorough background check including written references from past employers for any employees who will be caring for your loved one. Further, in order to ensure that your loved one is safe from attacks by other residents, the nursing home administration should consistently evaluate nursing home residents to determine whether they are a risk for attacking other residents. In our practice, we have seen a number of instances in which nursing home residents were violent to other residents and the nursing home administration did not take prompt action to protect other residents. We recommend you ask the nursing home administration what their protocol is to protect other residents when a violent resident commits some type of dangerous act.

You shoul pay atention on next thing:

Are there any unpleasant smells?
Do residents take well-groomed and clean?
Does the food taste good?
When you test a call bell, is there a quick response?
Does the staff respect patient privacy?
Does the facility allow private furniture?
Are there any visiting restrictions?
Is the facility clean?
Do staff interact pleasantly and cooperatively with each other?

From our Daytona Beach, Florida nursing home and assisting living facility practice, we have noticed that assisted living facilities are dangerous for residents when the resident’s condition has deteriorated and the facility cannot provide adequate supervision. Assisted living facilities have a built-in financial incentive to admit and keep residents or patients even beyond the ability of the facility to provide proper care. Most assisted living facilities charge monthly rent. If a resident deteriorates and the facility cannot provide proper care, the facility will lose the monthly rent if it insists on the resident being transferred to another facility with skilled care and closer supervision. Thus, many assisted living facilities are reluctant to transfer patients for the greater care they need. Assisted living facilities do not provide close supervision. In fact, they are designed to provide only limited assistance. Florida law requires a facility to obtain a certificate from a doctor describing the physical and mental condition of the resident but the facility administrator is responsible to be sure it can provide appropriate skill and staff to properly care for their residents. Florida law also requires the facility not to accept residents beyond their ability to provide proper care and specifies certain areas to focus on when making the decision. These include whether a resident requires 24-hour skilled nursing care, is bed-ridden, requires restraints, may be a threat to themselves or others and may not be able to move to a safe area during an emergency without more than minimal assistance. Sometimes the failure of a facility to transfer to another skilled health care provider such as a hospital or nursing home can have disastrous consequences and may even result in a patient’s death. For instance, some assisted facility residents have been able to wander away from the building despite very significant dementia and inability to find their way back. In other instances, residents who are at high risk for falling and who already have a series of falls at the assisted living facility, are not transferred and continue to fall. We have seen falls that result in brain damage and death. Therefore, the question as to whether or not your mother is safe in an assisted living facility is one that requires very careful attention. We recommend that you carefully review the facility’s supervision and health care abilities with the administrator and with your loved one’s physician before admission to an assisted living facility and at any time your loved one’s condition deteriorates.

Be wary of US News and World Report nursing home rankings U.S. News & World Report has recently published its 2009 rankings of the “Best Nursing Homes.” However, the magazine explains that its rankings are primarily based on the five-star ranking system of the Centers for Medicare and Medicaid Services. The Medicare rankings are in turn based on inspections done by state agencies. In our Daytona Beach nursing home abuse practice we have seen some nursing homes artificially inflate their staffing in anticipation of state inspections. Although state inspections are not announced ahead of time, some nursing homes are able to anticipate a probable time for the inspection. Since the quality of care available in nursing homes depends a great deal on whether there is sufficient staff, the inspection ratings by a state agency will be artificially higher when a nursing home has increased staff just for the inspection. Therefore do not rely entirely on the US News and World Report Nursing Home rankings to select a nursing home. Use the rankings as one of many factors to consider. There is simply no substitute for visiting a nursing home. We recommend that you visit at mealtime when the nursing home staff is busy. All nursing home patients need good care whether the staff is busy or not. Therefore, visiting at mealtime is a good test of whether the staff will have enough time for your family members when they need it.

All adult individuals in healthcare facilities such as hospitals, nursing homes, home health agencies or health maintenance organizations have certain rights under Florida law. You have a right to fill out a paper known as an “advance directive.” The paper says in advance what kind of treatment you want or do not want under special, serious medical conditions – conditions that would stop you from telling your doctor how you want to be treated. For example, if you were in a coma and taken to a healthcare facility, would you want the facility’s staff to know your specific wishes about decisions affecting your treatment?

Nursing homes are required by law to do a thorough assessment of all their residents. The assessment is called a “minimum data set.” Nurses refer to this as the “MDS.” Once the assessment has been completed the nursing home is required to have a meeting to plan the type of care to be provided to the resident. This is called the care plan meeting. The resident and family members must be invited to the meeting. People from the various healthcare disciplines who will be providing care must attend the meeting. The initial goal of the meeting is to create a “care plan,” that acts as a guide for the nursing home staff as to what type of care to provide and when. The care plan meeting is an opportunity for family members to influence what the nursing home does for the resident. Since this meeting is required by law and the nursing home staff are required to invite the family, it is important that family members attend. If you cannot attend at a specific time, do not be shy about asking for the care plan meeting to be scheduled for another time when you can attend. This is also one of the best opportunities to prevent nursing home abuse. Here are some topics to ask questions about that will make the point, among other things, that you are going to hold the nursing home staff accountable for providing good care:

1.Are there any circumstances in which you would consider the use of restraints? If the nursing home has a “restraint-free policy” why do you think this is the safest for my family member?
2.What are you going to do to make sure that my family member does not fall? Have you assessed my family member for the risk of falling and what is the result of that assessment?
3.How are you going to make sure that my family member’s pain is well-controlled?
4.Is my family member at risk for developing bedsores? If my family member cannot move around in bed, what are you going to do to make sure that the nurses turn and reposition her every two hours? Have you considered the use of a special pressure relief bed to help prevent bedsores? Why do you think the bed that is now being used is the best for my family member?

Your health care surrogate can make only choices about health care. For example, the choice to start, stop or try a different treatment, with your best interest in mind, of course. Most important, he or she can make decisions only if you can’t make them for yourself. Health care surrogates can also make sure that doctors follow your living will. In case you don’t have one, she or he tries to make the choices you make for yourself. the civil legal system.

A power of attorney is a legal document that gives someone else the authority to act on your behalf and durable means that the power is effective after you become mentally incompetent.

An advance directive is a written or oral statement, which is made and witnessed in advance of serious illness or injury, about how you want medical decisions made. Two forms of advance directives are “Living Will” and Healthcare Surrogate Designation An advance directive allows you to state your choices about healthcare or to name someone to make those choices for you if you become unable to make decisions about your medical treatment. An advance directive can enable you to make decisions about your future medical treatment.

Living will is a legal document that lets people state their wishes for end-of-life medical care, in case they become unable to tell their decisions. The document is not valid after death.

A “healthcare surrogate designation” is a signed, dated and witnessed paper naming another person such as a husband, wife, daughter, son or close friend as your agent to make medical decisions for you if you become unable to make them for yourself You can include instructions about any treatment you want or wish to avoid. Florida law provides a suggested form for the designation of healthcare surrogates. You may use it or some other form. You may also name a second person to stand in if your first choice is not available.

Assisted Living is for a person who requires some but not full assistance. This include care services like: Assistance with the activities of daily living (personal care) and medication management and administration A nursing home is for a person who is fully dependent on others for most or all of their activities of daily living and domestic tasks. This includes care services like: Assistance with the activities of daily living (personal care), Medication management and administration, Skilled nursing and Limited medical treatments

Make sure that someone such as your doctor, lawyer or family member knows that you have an advance directive and where it is located. Consider the following:

If you have designated a healthcare surrogate, give a copy, or the original of the written designation form to the person.
Give a copy of the advance directive to your doctor for your medical file.
Keep a copy of your advance directive in a place where it can be found easily.
Keep a card or note in your purse or wallet which states that you have an advance directive and where it is located.
If you change your advance directive, make sure that your doctor, lawyer and/or a family member has the latest copy.

Nurses in hospitals and nursing homes are supposed to keep track of your vital signs on a regular basis. If they don’t, you or a loved one could actually die unnecessarily. “Vital” means “necessary to the maintenance of life.” They mean it. If healthcare providers know soon enough after your vital signs start to become abnormal they can take action to keep you alive. This, of course, requires that the nurses do a good job of consistently and frequently taking your vital signs. If the nurses do not do it, complain to the supervisor. Vital signs include body temperature, respiration rate, blood pressure, and heart rate. Normal body signs are different depending on age, weight and physical condition. Normal body temperature, of course, is 98.6°F although the normal range is between 97.8°F and 99.1°F. Normal respiration rate, which is the number of times you take a breath in a minute, is 12-18. The normal heart rate at rest is 60-80 beats per minute. Normal blood pressure is 120/80 but varies substantially from person to person. Here is an example of why it is so important to keep track of vital signs. Serious infections are now more and more frequent in nursing homes and hospitals. A too frequent cause of death in nursing home residents is a condition known as “SIRS,” which can be brought on by an infection. “SIRS” stands for a systemic inflammatory response syndrome. This condition is an emergency that must be dealt with immediately in an intensive care setting. Symptoms include abnormal vital signs with a body temperature below 96.8°F or above 100.4°F, heart rate more than 90 beats per minute, and a respiratory rate of more than 20. SIRS is often accompanied by organ failure. If the condition is recognized soon enough and dealt with appropriately, you could live through it. If not recognized soon, it is seriously life-threatening. For more information see the Wikipedia entry for SIRS. If you have suffered from SIRS, you may be able to receive compensation through a medical malpractice lawsuit. Contact us now.

A lot of people believe that Medicare pays for nursing home care. In fact, Medicare covers very limited nursing home care. They cover up to 100 days of “skilled nursing care” per illness, and there are requirements that must be met before they will cover your nursing home stay.