This all raises the question of how safe your family member is in a nursing home in Florida. Most of the headlines about assaults on nursing home residents involved nursing home staff abusing a resident. However, assaults on residents by other residents may be much more frequent.

Florida has a law that requires nursing homes to conduct criminal history background checks on its personnel. However there is no requirement that the nursing home conduct criminal history background checks on its residents.

Of course, residents may be dangerous even if they have not been convicted of some crime in the past.  For example, people might become violent because of dementia, Alzheimer’s disease or hallucinations even if they have lived long lives without any violent tendencies.

Nursing homes have a duty to take reasonable steps to protect its residents from the assaults of other residents. This should include a reasonable investigation into the behavior of a resident before coming to the nursing home.  Nursing homes should review previous medical records, talk to the family and complete a thorough assessment of a resident to determine if there is a risk of violence. Of course, it is also important that the nursing home carefully observe the behavior of all its residents while at the nursing home to determine if the resident could become violent.

If a resident poses a threat to others, the nursing home staff should either take reasonable steps to keep the resident from hurting anyone or transfer the resident to a facility that has the expertise to adequately control the resident.

If one of your family members is in a nursing home we recommend that you talk to the administrator to get a full explanation about what the nursing home does to protect its residents from assaults by other residents. For much more information about protecting your family member in a nursing home, see our videos and articles at zqlawyers.com.

The two types of serious injuries we most often see from falls are traumatic brain injury and fractured hips. People with these types of injuries need to be given prompt and appropriate medical treatment to avoid what can be drastic consequences or substantial pain.

What should you do then if you get a call from the nursing home that your family member has fallen this is a?   Since you are not likely to be a medical professional, the most important thing you can do is to insist that your family member be thoroughly and adequately assessed to determine if there is an injury and follow-up to make sure adequate treatment is provided.

First, ask the nurses what has already been done to determine if there has been a serious injury.  Insist that the nurses examine the patient’s entire body for bruises, cuts, red areas, skin tears or any other sign of injury. Insist that they document everything they see.

Write down what they tell you and get a copy of their documentation so that you can share it with a doctor if appropriate. If necessary examine your family member yourself and take pictures with your cell phone so that you can share them with a doctor.

If there is any sign of injury to the head from the fall, insist that the nurses transfer your family member to the emergency room for evaluation by the doctors.  Injuries that can result in traumatic brain injury are not always apparent. It may take some time for symptoms of brain injury to appear. If appropriate, the doctors can perform a CAT scan or other diagnostic procedures that reveal information not available to nurses at the nursing home.

As to possible fractured hips, if there is any sign of injury to the hips, legs or lower body insist that the nurses do an assessment immediately and repeat the assessment that you at least on the next shift. Ask that a physical therapist and the doctor also evaluate your family member. Ask your family member if he or she is experiencing any pain and where the pain is.  Write down what your family member says and tell the nurses.  Tell them about your own observations and whether you think the patient is in pain.

If you have a bad feeling that your family member is not getting adequate care, trust your instinct and insist that the nurses transfer the patient to the emergency room for evaluation.

Sometimes people are reluctant to insist on more care than is being provided by the nurses because they want to avoid confrontation. Try to resist your understandable desire to avoid confrontation and in as friendly a way as possible insist that your loved one gets what you think is adequate care.

The Legislature does in fact require that nursing homes have an insurance policy to protect victims of the nursing home’s negligence.  However, and this is a big “however,” the Legislature does not require any specific amount of insurance. So the nursing homes buy pretend insurance.

One form of pretend insurance is known as a “wasting policy.”  With this type of “insurance” the nursing home buys a low policy limit such as $25,000 or $50,000.  The trick though is that the amount of the $25,000-$50,000 left to pay the victims of the home’s negligence is reduced by the cost of defending the lawsuit.

The costs include attorneys’ fees and expert witness fees along with a variety of other expenses.  Litigating nursing home lawsuits is expensive.  Attorneys spend a great deal of time working on the case and expert witnesses charge very large fees, sometimes $1,000 an hour.  Thus by the time a case has proceeded through trial, there is most often no money left from the insurance company to pay the nursing home resident who was injured.

Therefore, when you are choosing a nursing home ask the administrator to show you a copy of their professional liability insurance policy.  If the nursing home has only pretend insurance it is a sign that it does not want to protect its residents and does not want to be accountable for its negligence.

For much more information about nursing homes and protecting your family members, see our nursing home practice section on our website zqlawyers.com.

The agreements provide that the resident gives up the right to file a lawsuit in court and ask for a jury trial. Instead if the nursing home abuses the resident the case goes to an arbitrator who may be less likely to be sympathetic to the resident.

We usually find that these complex agreements were misrepresented as for the benefit of our clients. Businesses sometimes tell our clients that the agreements are good for them because disputes can be resolved quickly. What they don’t say is that the nursing home’s lawyers have carefully drafted the agreements to get people to give up important and valuable legal rights.

For example, one nursing home chain asks its residents to sign an arbitration agreement that places a limit on the amount of money that can be awarded the resident in a lawsuit regardless of the severity of injury that the nursing home caused.   Florida courts have ruled that this limitation is against public policy, but the nursing home chain keeps trying to enforce it.

Therefore, we recommend that nursing home residents refuse to sign arbitration agreements. Be careful to review the nursing home admission agreement to make sure that it does not have an arbitration clause. If there is an arbitration clause, just draw lines through it so it is clear you do not intend to agree to it.

In some circumstances with the appropriate safeguards, arbitration can be fair to both sides. However we recommend that you make that type of decision only after consulting a lawyer experienced in nursing home litigation.  Any decision to arbitrate is best made in the context of a lawsuit with advice of an attorney.

Despite the fact that nursing homes employ people who are more than two years old, the federal government has to tell them to play nice. In fact the Centers for Medicare and Medicaid Services have to publish new rules about how to play nice all the time.  The government creates these rules in response to observations that nursing home employees are not treating residents respectfully. In June of this year the government again had to publish some new rules about playing nice.  Here are some examples of the rules.  They are just like your mom’s rules although they are phrased in more grown-up language:

1. Each resident has the right to be free from mistreatment, neglect and misappropriation of property.

2. Staff [should not] interact/converse only with each other rather than with residents while assisting residents.

3. [Staff should] respect residents’ private space and property (e.g., not changing radio or television station without resident’s permission.

4. [Staff should] respect residents by speaking respectfully, addressing the resident with a name of the resident’s choice, [and]  avoid use of labels for residents such as “feeders.”

 5. [Staff should] maintain resident privacy of body including keeping residents sufficiently covered, such as with a robe, while      being taken to areas outside their room.

That last rule means that nursing homes should not leave a resident in a public area in a wheelchair uncovered without any clothes. Even when you were two years old, you didn’t do that.  Unfortunately in our nursing home abuse practice in Daytona Beach we see just this type of thing happening. The law does allow the resident or family to sue the nursing home for violation of resident rights, but our clients would rather be treated with dignity and respect than go to court.

So what we have to say to some nursing home employees is, “Play nice and grow up!”

For more information about nursing home abuse see the nursing home section of our website zqlawyers.com

Of course no one likes to think about feeding tubes.  And, no one thinks they will need a feeding tube.  However, if you are in an accident and are seriously injured you may become so debilitated that you cannot swallow.  If you are elderly and suffer from dementia you may become so seriously debilitated that you cannot swallow.  That’s when the doctors ask you or your family to make a decision.

The issue then is how you want to balance extending life with quality of life.  That’s a decision you should make after careful thought, after talking to your family and after becoming fully informed.

One common form of feeding tube used for long-term care is the PEG tube. PEG stands for percutaneous endoscopic gastrostomy tube. The surgeon cuts a hole in your abdomen and inserts the tube directly into your stomach.

A study published in April, 2009 indicates that there is little evidence feeding tubes benefit patients with advanced dementia. The study author says that tube feedings in the elderly with dementia may not even prolong life and that physical restraints were used for 71% of the patients studied.

In our nursing home neglect practice in Daytona Beach we often see elderly patients restrained because they forcibly take out their feeding tubes. This usually happens because the patient is too confused to understand what the feeding tube is.

The use of feeding tubes can be extremely controversial without clear direction from the patient.  You may remember the case of the unfortunate Florida woman who had been on a feeding tube for a long time.  Her husband directed the doctors to remove the feeding tube but politicians and the media intervened creating what could only be described as a media circus that was emotionally wrenching for everybody involved.

Therefore, we recommend that you sign a living will making it clear whether you want a feeding tube.  We will have more on feeding tubes and living wills in a later posting.

The problem is that because these programs taken together do not pay well they make it difficult for nursing homes to both make a profit and to provide quality care. Thus, many nursing homes choose to limit staffing in order to make a profit. Inadequate staffing in turn results in abuse and neglect of nursing home residents.

Medicare taken alone reimburses nursing homes at a profitable rate. However, Medicaid can pay at a rate that causes a loss for the nursing home.  Nursing homes try to offset losses from Medicaid patients with profits from Medicare patients.

Medicare, however, pays for only a limited time and only for those who meet specific guidelines.   Medicare does not pay for “custodial care,” including help with your activities of daily living such as getting dressed, feeding yourself and bathing. If you do not need  “skilled nursing care” Medicare will not pay. “Skilled nursing” includes care such as intravenous injections and physical therapy and requires staff such as registered nurses and physical therapists.

Medicare pays “full cost” for only 20 days. After that the patient pays a large copayment up to 100 days and then Medicare pays nothing. Once the 20 days is up, nursing homes know their profit margins will go down.

Tragically we have seen many cases in our Daytona Beach-based nursing home neglect practice where the nursing home discharges a patient home on the 20th day even if the patient is terribly sick. Sometimes the patient dies because of the discharge.

Therefore, one of the most important conversations you will have with nursing home staff will be with the discharge planner. We recommend that you make it clear to the planner that the choice of healthcare providers after 20 days should be based on the patient’s condition rather than Medicare’s ending reimbursement.

Assisted living facilities are supposed to provide residential care for the elderly or disabled who need some minor assistance with their activities of daily living but do not need skilled nursing care.  For example assisted living facilities appropriately provide services to people who just need help getting dressed or reminders to take the right medication.

Administrators at assisted living facilities cause needless suffering and death when they keep people who need more care than the facility is capable of providing.  A critical problem is that assisted living facilities have a built-in conflict of interest.  The longer a resident stays at the facility, the longer the facility has a paying customer filling a bed.  Thus, assisted-living administrators have a financial incentive to resolve any doubt about whether a resident’s condition has deteriorated beyond the ability of the facility to provide quality care in favor of keeping the resident.

Of course, the safest approach is to transfer the resident whose condition has deteriorated to an emergency room for evaluation or if the situation is not an emergency to get a timely evaluation from the resident’s primary care physician.  Tragically we have seen too many cases in Daytona Beach, New Smyrna Beach and other Central Florida assisted-living facilities in which the administrator does not follow the safe approach and the resident dies without proper medical care.  Thus, if you have a family member in an assisted living facility it is important to be in close contact with the administrator to make sure that the administrator takes the safe approach to protect your family member.

Here are three things to do when you are in good health that will make a difference later:

Prepare a living will.  This is a document that expresses your desires about how you want to be treated by healthcare providers. Lawyers can help you think this through. Talk to your family about what you want. Do you want a ventilator? Do you want a feeding tube? Do you want hydration or nutrition withheld under certain circumstances?

Designate a health-care surrogate. This is the person who will make decisions for you about your health care in the event you cannot. Show this person your living will and have a frank discussion about your wishes for end-of-life care. Designate an alternate health care surrogate if your primary surrogate is unable or unavailable to make the decisions.  Give your doctor and lawyer a copy of the designation and your living will. Keep the original in a safe place.

Prepare a durable health care power of attorney. This is the document that provides authority for someone you trust to take care of your financial affairs if you are too sick to do so yourself. You may need a separate form from your bank.  You should also designate an alternate to serve as your power of attorney.  If you are not competent to handle your affairs and you have no power of attorney, insurance companies and banks will probably refuse to  give others access to your funds to pay your bills.

During our over 20 years of representing clients in nursing home abuse and malpractice litigation in Daytona Beach and Deltona we have noticed that the course of nursing home lawsuits is strikingly similar from one case to the next. Nursing homes often repeat the same mistakes such as failing to turn and reposition a patient who cannot move in bed and thereby causing a bedsore.

The defenses nursing homes raise in many lawsuits are frequently similar. They try to blame somebody else rather than assume responsibility. Here are three things we see nursing homes say throughout the course of a lawsuit:

1. The nursing home resident was very sick.  At almost all mediations of nursing home lawsuits the defense lawyer starts the nursing home’s statement by pointing out that the resident was very sick when admitted.  The lawyer typically recites a long list of diagnoses that doctors have written into the medical records.  This includes diagnoses for a long time before admission to the nursing home. To look for as many diagnoses as possible, the defense lawyers get copies of the resident medical records, read them for references to other medical records and get copies of those.

The point the lawyer is trying to make is that whatever injury the residents sustained in the nursing home was caused by the resident being very sick rather than by nursing home negligence. Of course, this approach entirely misses the point that residents are in nursing homes because they are very sick and that, therefore, they need good care to avoid further injury and deterioration of their condition.

2. It was the doctor’s fault.  In an effort to shift blame, nursing homes frequently claim the resident’s doctor was negligent. For instance if our client fell and broke her hip at the nursing home, the defense sometimes claims that it was the doctor’s responsibility to order other interventions such as bedside rails and the doctor did not do so.  Or, if our client developed a bedsore in part caused by the nursing home using the wrong type of pressure relief mattress, the defense could claim that the   nurses were simply following the doctor’s orders.

This defense misses the point that the nurses spend much more time with the resident and are responsible for informing the doctor about the resident’s condition and suggesting appropriate nursing interventions.

3. It was the family’s fault. Nursing homes frequently claim that the care they provide must have been good because the family did not move the resident to another nursing home. They also claim that the nursing home is a good one because the family chose it in the first place.

This defense misses various points.  Family members often cannot make the choice of the nursing home.  An insurance company or a hospital discharge planner frequently makes the choice. Further, family members are not medical experts and   do not have the knowledge to know whether or not the care provided by a nursing home is up to standard.