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.

For example nursing home residents who have had strokes or some other extremely debilitating medical condition sometimes cannot swallow. The resident and family must then decide whether to use a feeding tube. The feeding tube provides nutrition and hydration and extends life for people who cannot take in their own nutrition and hydration by swallowing.

Feeding tubes, however, are not without difficulties. The most common type of feeding tube utilized long-term is the percutaneous endoscopic gastrostomy tube or PEG tube. The Peg tube is surgically inserted through the abdomen into the stomach. The surgeon uses a camera inserted through the mouth down into the stomach to perform the surgery. The feeding tube rests in the stomach and exits through the skin. The nurses must carefully clean the surgical site for the remainder of the resident’s life in order to avoid infection.

The tube, of course, interferes with a resident’s mobility. While it provides sufficient nutrition and hydration for the resident to stay alive, it also has side effects and does not do as good a job providing nutrition as normal chewing and swallowing. Side effects include bloating and diarrhea. People on PEG tubes are at risk for poor nutrition and digestive problems. Because of the potential for poor nutrition and decreased mobility, they are also a risk for bedsores. For more information about this feeding tube, see the entry in Wikipedia through this link. http://en.wikipedia.org/wiki/Feeding_tube.

Any decisions about health care in a nursing home or hospital require balancing the goal of extending life with the goal of living a quality life. We recommend that family members talk about end-of-life planning in a very frank and nonjudgmental way well before decisions must be made in a nursing home or hospital. The best way to do this is to consider a thorough living will and designation of health care surrogate as allowed by Florida law.

Any business must make a profit in order to continue its existence. The danger for nursing home residents is that the most probable way nursing homes will have to adjust to reduced income and reimbursement is to decrease the number of staff to take care of their patients.

Our clients already report incidents which make it clear that nursing homes are frequently understaffed. For example one of our clients who needed help to go to the restroom had to call out for help to anyone passing by in the hallway because his call bell was not being answered. He was ignored and eventually tried to go to the bathroom by himself, fell and broke his hip. The fall could just as easily have resulted in a blow to his head, brain damage and death.

Understaffed nursing homes are unlikely to be able to provide sufficient care to prevent bedsores. A bedsore prevention program requires that the nurses turn and reposition their patients every two hours. If there are not enough people in the nursing home staff, it will be difficult for the nurses simply to remember to turn and reposition each patient much less to actually do it. Bedsores can become infected since intact skin is the body’s best defense to infection. Especially in light of some of the new “superbugs,” these infections can cause death.

When legislatures and the federal government are considering reduction in the reimbursement for nursing home care, they should also consider the likelihood of a substantially increased death rate for nursing home patients. At Zimmet & Quarles we urge you to contact your legislators, especially the Florida Legislature,  to ask them to consider the real dangers of reducing nursing home reimbursement.

The ratings look at the number of staff compared to the number of residents and how many of the staff are trained nurses.  Many of the nurses in nursing homes are not registered nurses. A substantial number of nurses working in nursing homes have a license as a licensed practical nurse, “LPN.”  These nurses have much less training than registered nurses.

The ratings take into account the differences in how sick the nursing home residents are in each nursing home since that will make a difference in how many staff are needed. A nursing home with insufficient staff is much less likely to be able to provide the quality care and attention necessary to prevent residents from falling and from developing bedsores.

Medicare explains that the Five-Star Quality Rating System is not a substitute for visiting nursing homes. When evaluating whether a nursing home will meet your needs, it is important to use the Five Star Rating together with other sources of information.

The two lowest rated nursing homes in Volusia County as of the date of this article were Woodland Terrace Extended Care in Deland and Sandalwood Nursing Center in Daytona Beach. Both of these nursing homes were rated only one out of five stars.

While the national average for percent of high risk, long stay residents who had bedsores is 12% Woodland Terrace’s percentage was 42%. Similarly the national average for low-risk patients is 2% and Woodland Terrace’s percentage was 23%.

For staffing standards, Woodland Terrace ranked two stars out of five based on the number of staff hours per resident. While the average number of CNA hours in Florida for each resident is three hours, Woodland Terrace’s was one hour, 34 minutes. This means the nursing assistants at Woodland Terrace had substantially less time to turn and reposition their assigned residents.  Thus, it is no surprise that more Woodland Terrace residents had bedsores.

When evaluating whether or not a nursing home is best for your needs or whether a nursing home is providing good care to someone you love, the information in this rating system can be very helpful. For more information and for the ratings for each nursing home in Volusia County you can go directly to the Medicare website.

Here is a typical example of what happens: an elderly person falls at a nursing home and has to go to the hospital to have an operation to repair a broken hip. This is followed by an extended stay at the hospital and then at the nursing home for rehabilitation. The patient develops a bed sore at the hospital which gets worse at the nursing home. The broken hip, of course, causes a great deal of pain and the bedsore becomes infected. The patient almost dies and has to go to the hospital again for treatment for the infection. Medicare pays for some of the expenses and a private insurance company pays for other expenses. The expenses, of course, are substantial.

The patient then sues the nursing home for negligence in supervision in failing to prevent the fall and for negligence in failing to turn and reposition the patient resulting in a bedsore. After incurring $20,000 in litigation costs to sue the nursing home, it agrees to pay a settlement. Medicare and the health insurance companies throughout Florida, central Florida and Volusia County then claim that they are entitled to all or a portion of the settlement because they have paid for medical expenses which were part of the settlement.

When we tell our clients that the law allows Medicare and the insurance company reimbursement from the settlement for medical expenses they paid, they usually think it is not fair that the insurance company collected premiums and Medicare collected taxes and neither will pay the medical expenses. Even worse if Medicaid has been paying for medical expenses and the patient dies, Medicaid will claim that it is entitled not only to medical expenses it paid that relate to the lawsuit but will also make a claim against the patient’s estate for all payments it made at any time whether they were related to the lawsuit or not.

Part of what we do for our clients is to negotiate with Medicare, Medicaid and other insurance companies to be sure that they are not paid more than the law allows. In some cases negotiation is not successful and we represent our clients in a mini-trial against the insurance company to ask the judge to do what is fair.