Star-Tribune Fall Investigation Part 1

As discussed yesterday, here is an edited part one of the series of articles in the Star-Tribune about fatal falls in nursing homes.  There were 1,000 Minnesotans whose deaths were related to falls in nursing homes from 2002 through 2008, according to a Star Tribune analysis of death certificates. On average, one nursing home resident in the state dies every two days in circumstances stemming from a fall.  Less than 10 percent of fall-related deaths in nursing homes are fully investigated by the Minnesota Department of Health, which is charged with monitoring nursing home care.  Even when regulators discover that negligence or neglect caused the fall and death, they often do not cite nursing homes for violations of state and federal regulations.

Minnesotans in nursing homes fell after aides left them alone on toilets. They fell while being improperly  transferred -- such as from a bed to a wheelchair -- by one aide when two were needed. They fell when aides misused equipment for moving them and dropped them in the process.

Some died quickly, their fragile neck bones snapped or their aging bodies overwhelmed by internal bleeding caused by the fall and compounded by blood-thinning drugs. Others -- often still enjoying some quality of life -- were suddenly bed-ridden in excruciating pain from broken bones.  After a fall, a spiral of decline often begins in the elderly. Weakened by the ordeal, victims succumb to pneumonia or see their chronic health conditions erupt with a vengeance. The fall, medical experts say, sets off a deadly systemic chain reaction, hastening the end of life. 

More than a dozen former nursing aides who worked at Minnesota nursing homes that have had fall-related deaths cited staffing problems as a concern. By at least one federal measure, 75 percent of Minnesota nursing homes are understaffed, although both state and federal staffing standards are vague.

Advocates for the elderly say if more of the deaths related to falls were subject to a more rigorous regulatory microscope, it would reveal both overburdened staffs and mismanagement.

During its investigation at Crest View, the state found problems with falls there. In a single month -- April 2005 -- there were 48 falls involving 33 residents at the facility, the report shows. Although the facility "identified a concern" with an increased number of falls, it didn't revise its fall-prevention program, the report said. The state cited Crest View for flawed care, concluding that it violated three federal regulations. Under standard procedure, Crest View was given time to correct the deficiencies and avoid punishment.   Regulators took no further action.

But over the past few years, some nursing homes have launched fall-reduction efforts, using sophisticated equipment to pinpoint balance and gait weaknesses, providing strength training and beefing up internal investigations. Over the past two decades, changes in laws and a shift in nursing home philosophy aimed at increasing profits

Under federal rules, every nursing home resident must be assessed for fall risk. Over the past two years, small consortiums of Minnesota nursing homes have made fall-prevention a priority. Under a state incentive program, some get extra payments to improve their performance. One group, Empira, received $4.2 million last year for 16 participating nursing homes.  Part of Empira's strategy is changing how the homes try to prevent falls. Some homes are improving their investigations into what causes a particular resident to fall. A few turn to technology: St. Therese Home in New Hope bought expensive diagnostic equipment to pinpoint weaknesses when residents sit, stand and move.

At St. Therese, in the midst of a heightened effort to prevent falls, a paralyzed, high-profile resident died after he was dropped as two nursing aides moved him from a wheelchair to bed last spring.

The Rev. Tim Vakoc, a 49-year-old Roman Catholic priest and Army chaplain, had suffered a devastating head injury in 2004 from a roadside bomb in Iraq.  On June 20, he died after falling to the floor and injuring his head, a state report determined. The state's investigation found no neglect by St. Therese nursing home, but blamed the two nursing assistants, saying they gave "incongruous" explanations of what happened as they tried to move Vakoc using an EZ Lift device.  Since 2004, at least 17 nursing home residents died or were injured across the state after being dropped from lifts.

Jeanette Lashinski doubts she ever would have filed a complaint about her mother's fall-related death in 2006. But her sister-in law, who worked in nursing home business offices much of her career, decided it was important to pursue. Lashinski's mother, Alice Kalas, was active into her late 70s, going dancing three times a week.   With arthritis and dementia, Kalas went to live at the Camilia Rose Care Center in Coon Rapids in early 2005. Nearly a year later, a nursing aide helped her to the bathroom and left her unattended. As the aide returned, she heard a crash and saw Kalas on the floor, head down. An X-ray scan showed her neck was broken. Kalas, 81, developed pneumonia and died 20 days later.

A state probe faulted the nursing home. The home failed to provide "supervision, assistance and on-going interventions" to reduce her risk, the state found. The state cited the nursing home for failing to prevent the accident. No fines were issued.  An alarm the staff had put on Kalas was removed with family'agreement because it agitated Kalas. Once it was removed, charts didn't list her as a fall risk anymore, and the staff thought it was safe to leave her alone in the bathroom.

Tania Rubin, 93, survived the Nazi advance in the Soviet Union, but a fall at Texas Terrace Care Center in St. Louis Park made her last days painful, her family said.  Early one morning, the staff found Rubin bleeding after hitting her face on an oxygen tank near her bed. She died a week later.  A hospital report after the fall said Rubin was suffering and dying, her chronic medical conditions no longer treatable. It is unclear whether a complaint was ever made to the state. A death certificate shows Rubin died of congestive heart failure, aortic stenosis and other natural causes. It does not mention her fall.

 

 

 

OBRA recognized as creating a private right of action

In a landmark opinion that recognizes a new cause of action for nursing home residents, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring claims to challenge the quality of their treatment.   This is a huge victory for consumers of nursing homes.  Hopefully, other Courts will follow the sound reasoning and adopt the holding.

"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.   "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote.

"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.

Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."

Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."

Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed. "The repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.

As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word 'residents' throughout," and their provisions "are constructed in such a way as to stress that these 'residents' have explicitly identified rights, such as 'the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident's medical symptoms.'"

In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."

 

Poliakoff & Associates, P.A., is one of South Carolina’s most respected and distinguished law firms. The Poliakoff firm began nearly 60 years ago by three attorney brothers: Matthew, J. Manning, and Bernard. With a history of believing the justice system...More...