Duty to Report Incidents and to Investigate

The News-Gazette had an article about the state investigation of an incident in which a female patient at Champaign County Nursing Home suffered an injury that went undetected (or covered up) and died several days later.  The incident has led to a chain reaction of investigations, reports and findings that have resulted in $50,000 in fines against the nursing home, the loss of some Medicare and Medicaid funding and the potential loss of all Medicare and Medicaid funding.

Two other visits to the nursing home by public health inspectors – one on April 2 and another on April 29 – found more problems at the facility. In the April 2 inspection, it was determined that the nursing home did not follow its own policy in handling an allegation lodged against an employee.

Also that day, the inspector determined that the nursing home staff "failed to provide appropriate treatment and services to maintain or improve abilities in toileting and transfers" for four residents.

The April 29 inspection found that nursing home staff failed to use proper equipment when transferring three patients. In the most serious case a 91-year-old patient suffering from dementia broke her hip after she stood up from her wheelchair and fell. The woman was supposed to have had a personal safety alarm on her wheelchair.

In the incident which set off the series of investigations, a patient identified only as R7 slipped out of a chair while in a lounge area, but apparently was caught by a certified nurse aide.

"CNA slid under (R7) and pulled her onto her lap ... (R7) denied pain .. did not hit head ... did not hit w/c (wheelchair) or w/c pedals. (R7) talking and laughing with staff ... able to move arms and legs without a problem or pain ... Body check done with no areas of redness noted," said a report identified as a "late entry," and dated Jan. 25. It is not clear whether the incident occurred that day or earlier. There was no other documentation of the fall before Jan. 25.

By Jan. 29, however, nurses noticed bruising on the woman's right leg and right hand. A physician ordered the woman be taken to an unidentified hospital. There, an emergency department attendant said the woman's "right leg has progressively increased in size with diffuse ecchymosis (bruising) ... It does appear (R7) struck her head." There was an "incredible amount of blood lost in the leg," an emergency department physician said. It "took a lot of fluid and blood to fix (R7's) anemia/shock which resulted in CHF (congestive heart failure)."

The woman died on Feb. 4. The Public Health investigation of the incident, dated Feb. 25, found the nursing home neglected to properly care for the patient in at least four ways:

– "By failing to implement existing policies on Falls, Lab and Diagnostic Test Results, Laboratory Testing, Orders for Anticoagulants, Anticoagulants and Change in Resident's Condition or Status;"

– "By failing to notify the physician in a timely manner of high laboratory values, neglected to identify a fall, to notify the Physician/Nursing staff of the fall and implement post fall monitoring;"

– "By failing to assess and monitor significant bruising as a side effect of anticoagulant therapy and a fall;" and

– Neglecting "to notify the Physician of the significant bruising in a timely manner, but continued to administer anticoagulants to R7."

The nursing home has allegedly instituted changes in response to the public health findings. For example, training will include special attention to reporting falls. "An episode where a resident lost his or her balance and would have fallen were it not for staff intervention, is a fall. In other words, an intercepted fall is still a fall," said a memo.

And when employees are accused of mistreatment of residents, a memo says they "will be removed from resident contact immediately until the results of the investigation have been reviewed by the administrator or designee. Employees accused of possible mistreatment shall not complete the shift."


 

Cover up or incompetence?

The Edmond Sun had a recent article about a 131 page investigative report that supports complaints against a nursing home in Oklahoma.  One of the complaints includes a lack of an effective system for investigating and reporting abuse and failure to consult with a resident’s physician when there was an injury.  The investigation was triggered by a Sept. 16, 2008, incident at Grace Living Center. On that day, a resident, Lester Pendergraft, allegedly sexually assaulted a 67-year-old resident.   Pendergraft has been charged with one count of rape by instrumentation.

A meager $10,000 penalty resulting from the investigation has been proposed by the Centers for Medicare and Medicaid Services. 

Documentation showed the victim’s daughter was notified at 8:45 a.m., 1 hour and 35 minutes after the incident occurred at 7:10 a.m. Edmond Police arrived shortly after they were notified, at about 9 a.m. The victim’s doctor was called between 8:15-8:25 a.m., shortly after he arrived at his office.

On Sept. 25, the detective assigned to the case said, “The facility did a poor job of protecting the evidence.” He said facility staff threw away evidence and washed the victim’s bed linens and clothing and Pendergraft’s clothing.   Why would the facility do that unless they were trying to cover up what happened?

According to the report, the facility’s staff should immediately notify the director of nurses and the doctor, get the resident out of harm’s way and assess the resident whenthere is an allegation of abuse or neglect.  “The resident was not assessed timely after the incident,” the report stated.

The detective said someone in charge said to another officer that he felt  “The situation was being blown out of proportion.”

Citizen advocate Wes Bledsoe, founder of A Perfect Cause, an advocacy organization for disability and elder rights, said when he read the report he was “deeply disturbed."  Bledsoe said what was most shocking was that the incident happened in the first place, that evidence was destroyed with either intent or by incompetence and that a staff member voiced concern about police blowing the situation out of proportion.  Furthermore, there were warning signs before the incident that Pendergraft posed a threat to residents. Pendergraft was entering rooms of residents without reason or explanation who could not call out for help.

According to the report, a certified nurse aide reported before the Sept. 16 incident that she observed Pendergraft touch another resident who was dependent on staff for assistance. The same day, Pendergraft was seen pulling up the shirt of still another resident who was dependent on staff for assistance.

 

Florida nursing homes given immunity from new disclosure law

Florida's "right to know" constitutional amendment that allows patients to check records of medical mistakes by health care providers doesn't apply to nursing homes according to the Florida Supreme Court.

The decision in Benjamin v. Tandem Healthcare, Inc. came in a lawsuit over the death of Marlene Gagnon, a nursing home resident who choked to death on food specifically served to her against her doctor's orders.

The decision allows the nursing home to hide relevant and material information from her estate.  This includes the nursing homes nondisclosure of an incident report on Gagnon's death.  The amendment itself says it covers "health care facilities" and "providers" as defined in general law.

The high court arbitrarily decided that state law doesn't include nursing homes among health care facilities.  "They basically said nursing homes do not provide health care," said Jeffrey Fenster, a lawyer for Gagnon's five children. "This strips constitutional rights from the elderly. ... This is just an invitation to more elder abuse."

The amendment never was intended to apply to nursing homes because it refers to "patients" and people in nursing are considered "residents" under state law, said Tony Marshall , association senior vice president.

The amendment was put on the ballot through a petition drive sponsored by consumer advocates. It was one of three initiatives dealing with medical malpractice adopted in 2004, including one that bars doctors with three malpractice judgments from practicing. The third, promoted by the Florida Medical Association, limits how much lawyers can collect in fees.


 

Order compelling production of incident report

We have uploaded a great Order compelling the production of an incident report.  The defense attempted to claim that the incident report was work-product.  The Court rightly disagreed.  All nursing homes are required by state and federal regulations to investigate and prepare incident reports when an incident causing injury to a resident ha occurred.  This is done in the ordinary course of business and not as result of anticipation of litigation.  These incident report should be produced but defense attempts to hide these incident reports from the families of residents.

Fall outside nursing home results in death

News Channel 36 in Concord, North Carolina had a tragic story of a resident  who fell to her death at a nursing home.  State inspectors have launched an investigation at the Concord nursing home.

The 87-year-old woman was found with a massive head injury on the ground beside an outside loading dock.   The article mentions that a fence near the loading dock is brand new, clearly installed after the patient at Concords Five Oaks Manor Nursing Home was found on the ground.  She'd fallen 4 feet to the ground, hit her head and died after being rushed to the emergency room.

The nursing home administrator did not report the woman's fall or death to the state.  A state spokesman says someone else reported it to them. Concord police told News Channel 36 the same thing.

Just last week Medicare ranked Five Oaks among the worst nursing homes in the country with just one out of five stars. Two state inspections from this year showed deficiencies. One cites accident and supervision problems, with one example where a patient "was on the floor" and staff had to be "disciplined."   Another said a patient was "outside the building."

 Channel 36 had a follow up to this story here.  In the follow up article, the family expressed concern that someone else could die there. The family says she had gotten out of the facility before.

Her daughter, Rosemary Ritchie, said she is worried about other patients at Five Oaks Manor. Doctors told her that her 87-year-old mother was brain dead because of a fall that the nursing home could have prevented.

She says her mom somehow got through a kitchen door that didn't have an alarm or lock on it. That door led out to the back of the facility and a loading dock. "I put her there trusting they would keep her safe and then this happened. It's not right," Ritchie said.

News Channel 36 tried repeatedly to get in touch with management at the nursing home and were told they would not comment.

Cornell Study on Resident on Resident Abuse

I saw this article on another website discussing the recent Cornell University study on physical abuse between residents.  Resident on resident abuse is underreported and mismanaged in the nursing home setting and most likely caused

Physical abuse in a nursing home may include staff or other residents.  According to a Cornell University Study, resident-on-resident violence in long-term-care facilities is far more prevalent than previously thought.  The authors of the study admit nursing home abuse is  woefully understudied.

The new study, funded by the National Institutes of Health (NIH), is only the second published report to look at patient-to-patient violence. Cornell University examined the records of 747 nursing home patients over the course of the study. Of those, 42 where involved in 79 incidents at nursing homes that actually required police intervention. The finding surprised researchers, especially because the study was not even focused on nursing homes. Rather, it looked at overall community crime, and nursing homes where just one area that was examined. 


Many nursing home patients suffer from varying degrees of dementia, and this often plays a factor in the violence.  Common triggers can be unwanted touching or disputes over television.   It is often the byproduct of a neglectful staff. Conflicts are far more likely to escalate to physical violence when patients are unattended. However, attentive staff can take steps to separate feuding patients before the situation deteriorates.

The report also questions the wisdom of housing dementia patients together. This is standard practice in most nursing homes, which generally have a dementia ward. But, because dementia often triggers violence, the report suggests it might be better to incorporate these patients into the general population as much as possible. 

As many as one in 20 nursing home residents are victims of nursing home abuse. Because there is no uniform system for reporting nursing home violence, experts on elder abuse concede that current estimates are probably just the tip of the iceberg.   There is no requirement to report resident-on-resident violence. In fact, the Cornell researchers only looked at cases that involved police calls. There were simply no records available to them detailing physical confrontations between residents that did not escalate to this level of violence.

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...