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Articles Tagged with abuse

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By Jessica Surber, Attorney

English, Lucas, Priest & Owsley, LLP

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Our firm routinely handles nursing home abuse, neglect and wrongful death cases. We see families every day who have trusted their loved ones to assisted living facilities or nursing homes but have found that the care was not up to basic standards.

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nursing home photosThe Health Insurance Portability and Accountability Act, also known as HIPAA, is a federal law that protects a patient’s right to keep certain medical and other health care information private. HIPAA protects information that health care providers put in a patient’s medical record, billing information, and most other health information held by those who must follow federal privacy laws.

Under HIPAA, covered entities must put safeguards in place to protect the privacy of patients’ information, including keeping disclosures to the minimum necessary to accomplish an intended purpose. Violations of HIPAA rules can result in hefty civil and criminal penalties.

One would think that the privacy rules and penalties set for under HIPAA – and common decency – would prevent the gratuitous posting of photos of nursing home residents, but a recent report suggests that this is not so.

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bed 3Everyone knows that nursing home residents are frail and vulnerable, but many people do not know what to do if they suspect that a loved one is being abused or neglected while in a nursing facility. The law protects nursing home residents by providing a way for such residents, or a family member acting on a resident’s behalf, to seek monetary compensation and even punitive damages in a court of law.

While such suits may come too late to help a resident who died as a result of poor care, such lawsuits can help prevent future misconduct against other patients. Recently, a Kentucky jury sent a strong message against nursing home abuse by returning a large verdict against a care facility in a nursing home death case.

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bed 3Violations of health and safety codes must be severe for a state agency to take the action it did in the case of Hurstbourne Care Centre at Stony Brook in Louisville. The facility’s most recent inspection, conducted in May, found many problems, and authorities delivered a 711-page report to the Kentucky nursing home in June citing the numerous issues with the facility. The report was also sent to federal authorities, who revoked the nursing home’s ability to accept Medicare payments. In news reports, facility representatives said they were unsure if the nursing home would remain open.

The issues with the facility are severe, and some put the lives and well-being of the nursing home residents in jeopardy.

Among the problems cited:

  • Resident had ants crawling all over her and her bed, and had to cry out for help.
  • Resident was found on the floor in the middle of the night and no record could be found of offering any medical help to the resident. The resident was X-rayed and a fracture was found the next afternoon – nearly 16 hours after they were found on the floor.
  • Resident had a large bruise, and no records could be found that anyone had examined the resident or that the resident had received any kind of care for the bruise.
  • In February, a doctor ordered that a patient be weighed and nutrition monitored, due to the patient being underweight. In March, no record could be found of either occurring, and the patient had lost another 9 percent body weight.
  • Call buttons for several residents were not operational

There were many other problems cited by inspectors. You can read the full report here.

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jail2If you have a parent, spouse, or other family member who resides in a Kentucky nursing home, it is probably your worst fear that your vulnerable and helpless loved one will be abused at the hands of a caregiver. While outright abuse is less common than neglect, it does happen. Nursing home abuse can be physical, verbal, or sexual in nature. The family of a patient who suffers abuse, neglect, or other mistreatment has a right to pursue damages in a court of law. Such a case proceeds under a theory of negligence in civil court.

When a caregiver’s mistreatment of a resident rises above mere negligence and becomes criminal in nature, there may also be proceedings in criminal court against the wrongdoer. Criminal actions are punitive in nature and are not designed to compensate the victim of the crime, although in some cases some restitution may be ordered. While a family may file a complaint with the police department concerning alleged criminal conduct, it is ultimately up to the prosecuting attorney as to whether there will be a prosecution.

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Stethoscope 3In an unpublished opinion, the Kentucky Court of Appeals has found that a nursing home negligence dispute is subject to arbitration. In this case, a woman executed a general power of attorney naming her nephew as her attorney-in-fact in 2005. Approximately one year later, the woman went to live in a Danville nursing home. As part of the admission process, the woman’s nephew signed a number of documents, including an optional agreement to arbitrate any future disputes with the skilled nursing facility. More than two years later, the woman passed away, and her nephew was named the executor of her estate. The nephew then filed a negligence lawsuit against the nursing home in Boyle County Circuit Court.

In response to the lawsuit, the nursing home filed a motion to compel arbitration based on the paperwork the woman’s nephew signed at the time of her admission to the Danville facility. The trial court denied the company’s motion, based on lack of jurisdiction under the Kentucky Uniform Arbitration Act or the Federal Arbitration Act. The facility then filed an appeal with the Kentucky Court of Appeals.

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1277878_check_list sxchu username FanginhoonUnfortunately, nursing homes often place the most vulnerable members of our society at risk in their haste to turn a profit. Despite federal guidelines, elderly patients who reside in skilled nursing facilities regularly suffer abuse or neglect at the hands of the individuals who are tasked with their care. In many cases, chronic understaffing results in resident harm.

Common signs of senior citizen abuse include pressure ulcers which are more commonly known as bed sores, serious or frequent falls, combativeness, broken bones, weight loss, and more. For example, pressure ulcers can occur when a nursing home patient is not fed properly or moved at regular intervals. Similarly, overworked staff may be stretched too thin to care for residents’ needs and protect residents from dangers such as falling. In order to prevent dangerous falls, facility residents may simply need additional restroom breaks or senors, alarms or rails installed near their beds.

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OLYMPUS DIGITAL CAMERASenior citizens and other nursing home residents across the United States are increasingly the victim of elder abuse at the hands of other facility patients. According to a study that was conducted by Cornell University recently, 20 percent of skilled nursing facility residents were involved in a fight or other altercation with another resident during the previous four-week period.

Similarly, a University of Pittsburgh study found that six percent of assisted-living facility residents were victimized by an aggressive patient, and four percent were bullied. In addition, about 13 percent of such facility residents reported being involved in a verbal argument with another resident. Patient on patient elder abuse was reportedly higher at long-term care facilities where staffing levels were lowest, administrators enjoyed a shorter tenure and less formal education, and patients with dementia or physical disabilities were living.

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shaking-hands-1097209-m freeimages lockstockbExtendicare Health Services, Inc. recently agreed to pay $38 million in order to settle claims that the company provided poor care to nursing home residents in eight states. According to the United States Justice Department, a federal investigation revealed that the company provided unacceptable and substandard care to the residents of at least 33 facilities between 2007 and 2013. The group of skilled nursing facilities is accused of failing to employ a sufficient number of staff, ignoring safety protocols, and a number of other violations. In many cases, the deficient care resulted in preventable injuries that included pressure sores, fall injuries, broken bones, infections, malnutrition, and dehydration. You can read more in this news story from Cincinnati-based WCPO.

The federal investigation apparently began as part of a broader program designed to comprehensively evaluate the care provided to vulnerable populations by the largest nursing home providers in the nation. In addition, Extendicare Health Services reportedly came under review after two whistleblower complaints accused the company of committing Medicaid and Medicare fraud. Although the federal government will receive the bulk of the settlement funds, the nursing home company will apparently reimburse Kentucky more than $1.2 million for the substandard patient care that was billed to its Medicaid program. Indiana, Michigan, Minnesota, Ohio, Pennsylvania, Washington, and Wisconsin will also receive financial compensation as a result of the largest settlement of its kind.

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file000546206242 morguefile krosseelFalls are currently the leading cause of both fatal and non-fatal injuries to senior citizens in the United States. About one-third of elderly individuals in Kentucky and across the nation will reportedly suffer a fall injury during a given year, and many of those are nursing home falls. In 2013, approximately 2.5 million individuals age 65 or older sought treatment in an emergency room for injuries that were sustained in a fall. Unfortunately, falls may result in cuts, fractures, traumatic head injuries, and other physical harm. According to the nation’s Centers for Disease Control and Prevention, the number of fall-related broken hips is expected to climb to about 700,000 per year by 2030.

A team of researchers at the University of Maryland Medical School’s Program on Aging, Trauma, and Emergency Care seeks to understand and reduce the number of harmful senior citizen fall accidents, particularly nursing home falls. A new research study led by the school will follow 500 elderly patients who seek emergency room care and have a fall risk for a period of five years in an effort to develop a program aimed at reducing fall hazards for seniors.

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