The Nursing Home Reform Act requires that a plan of care be written for each resident in order to meet the physical, mental and psychosocial needs of the resident. This written plan must be completed at the time of admission. The law requires an assessment of the resident within 14 days of admission and the plan of care within the next 7 days. This is a very important process but it often does not receive the time and attention it deserves. The Act also specifically provides that the resident may have a legal representative involved in this process. Continued monitoring through frequent visits and communications with the nursing home staff are also needed to ensure that the plan of care is being implemented and is working to improve the quality of life for the resident. We do not usually think of the need for legal representation or advocacy in the context of our health care system. Yet, Congress has foreseen this need and created a legal right for legal representation of nursing home residents during the plan of care process and throughout residency in the nursing home.
Bill Of Rights
Federal and state law provides for a bill of rights for nursing home residents in order to enhance the quality of life for the resident. Some of these rights are as follows:
- Free choice of an attending physician; full advance information about medical care and changes in medical care. If the resident is adjudged incompetent, all of his or her rights are exercised by their guardian or person appointed under a Health Care Power of Attorney;
- Freedom from physical, verbal, mental and emotional abuse;
- Freedom from physical or chemical restraints applied for staff convenience rather than to protect the resident or other people; restraints (except in emergencies) require a written doctor’s order specifying the circumstanced under which restraints are to be used, and for how long. Psychopharmacologic drugs (e.g., Haladol, Valium) may be given only on a doctor’s orders, as part of a written care plan (i.e., not for the facility’s convenience), with an annual review of the appropriateness of the prescription by an independent consultant;
- Privacy in accommodations (although this does not require a private room for each resident), medical treatment, letters and telephone calls, and family visits;
- The right to organize and join in resident’s groups; the right of resident’s families to organize; and the right to privacy in meetings of resident’s and family groups;
- The right to express grievances without suffering discrimination or reprisal; prompt efforts by the facility to resolve grievances;
- The right to participate in social, religious, and community activities as long as the rights of other residents are not impaired;
- The right to see the results of the most recent federal or state survey of the facility;
- Written notice to all residents, before entering the facility, of the facility’s services, its basic per diem rate, and the cost of services not covered by Medicare or the basic rate; residents must be re-notified periodically as long as they stay in the facility;
- Notification to Medicaid recipients (or those who become eligible after they enter the facility and exhaust their resources) about the coverage of the state Medicaid plan for nursing facility services and about the availability and cost of other items and services for which extra charges can be assessed.
- The right to a safe and clean living environment. The right to have clothes and bed sheets changed as the need arises to ensure the resident’s comfort and sanitation.
- The right to access to all information in the nursing home’s medical record and the right to withhold informed consent to medical treatment. The right to confidential treatment of personal and medical records.
Complaints or Malpractice Lawsuits
If you suspect any problems or deficiencies with the care, you should immediately report this to the appropriate person at the nursing home. Each nursing home should have an established grievance process. Your complaint should be in writing and you should keep a copy. Allow them a reasonable time to respond to your complaint and take corrective measures. If you are not satisfied with their responses or failure to respond, call the Long Term Care Ombudsman of Montgomery Co., Ohio, (937-223-4613) and request that they contact the nursing home on your behalf. It is usually best to resolve these problems in this manner.
If you can not resolve the situation as suggested above or if there is a serious injury, malpractice or abuse, you may wish to take legal action. It is very important to be able to prove your allegations in the event of a lawsuit. Thus, all your communications (as advised above) with the nursing home, Ombudsman and other persons should be documented in writing. You should keep a notebook to record all daily occurrences. Your record of any incident should include the name of the person(s) involved, date, time and specific information of exactly what happened. Your notes should be factual and objective. Avoid any slanderous, insulting or accusatory comments. Your notes should be written as if they may some day be read in public. In the case of any physical abuse, you should photograph any bruises or other signs of abuse. Obtain names and addresses of any possible witnesses to any abuse or negligence. Mere suspicion or circumstantial evidence will not be sufficient proof in the event of a lawsuit. Photographs, witnesses and other direct proof are essential for the successful prosecution of a lawsuit.
Most nursing homes provide good care to their residents and most nurses and aids at the nursing homes are caring, competent professionals. Unfortunately, problems do arise in nursing homes where residents receive poor care or suffer injuries or abuse.
Some common signs that serious neglect or abuse may be occurring, or have occurred are:
- Significant, unexplained weight loss
- Development of numerous pressure sores
- Malnutrition, dehydration
- Inappropriate or unnecessary use of restraints
- Frequent, unexplained bruises
- Unexplained sensitivity when touched
- Agitation, anxiety
Typical incidents and injuries which form the basis of a lawsuit against nursing home are:
- Neglect, which includes:
- Bedsores/Pressure Sores
- Lack of Supervision leading to accidents and injury
- Poor care causing physical/mental deterioration or injury
- Abuse, which includes:
- Sexual assault/rape
- Psychological/emotional abuse
- Intentional hitting or burns
- Misuse of physical/chemical restraints
As part of my commitment to serve all the legal needs of nursing home residents, I assemble a team to prosecute each lawsuit.
Nursing home malpractice lawsuits require a team of qualified attorneys and expert witnesses in order to provide the best representation and achieve a successful prosecution of the lawsuit. This team will consist of some or all of the following professionals and experts:
- A specialist in Elder Law Certified as an Elder Law Attorney by the National Elder Law Foundation;
- Trial attorneys who have experience trying cases and are reputed as the best medical malpractice and personal injury attorneys in town;
- Social workers with experience working in nursing homes;
- Registered nurses with experience working in nursing homes;
- Licensed nursing home administrators who formerly managed nursing homes and are now available to testify in nursing home malpractice cases;
- A network of medical doctors specializing in all medical fields who are willing to testify in malpractice cases.
In nursing home litigation are: First, to obtain just monetary compensation for injuries, abuse and neglect suffered by the resident. Secondly, to negotiate for the nursing home to change its conduct so that others do not suffer from the same poor care, neglect or abuse.
© 2015 Michael Millonig, LLC