This is a difficult, but necessary subject to write about. It is a difficult subject to begin with and it is not an easy legal subject either. It is necessary because the patient’s advocate must have some idea of what to expect in a nursing home.
Let us say for example a wife has placed her husband in a nursing home. He was transferred there from the hospital and the family hoped he’d be home in a few weeks. After a few weeks the call comes. “Dad, died last night.”
It happens. It is a report I hear perhaps too often. We talk a bit, I give condolences. I hear the doubt and the dashed hope in the voice. It is part recognition that Dad was seriously ill and part questioning “did it have to happen?”
Did it have to happen? We all know it is true: People die in nursing homes. These are places for very sick and weakened people. Nobody goes there unless it is the last option. It can be a dangerous place to be even if you are healthy. Like schools where kids spread whatever is going around, nursing homes always have the current contagion. Except these are not healthy students. Instead of a sniffle a resident gets pneumonia. The antibiotics cause conflicts with the residents other medications and the resident becomes even sicker. And, that is just part of the disease process. You are weakened, much more susceptible and much more likely to have dangerous complications.
But, there are times when death or injury is not the result of “the disease process” but it is the fault of bad care.How can one get a sense of when we might look for other causes of complication, injury or death? I spoke with a prominent nursing home attorney and here is a cluster of “should not happen” kinds of cases. Not every one is the fault of bad care, but they do raise the question “Why did this happen?”
- Falls: Did the resident fall while being attended to by staff?
- Choking death: High concern in Parkinson cases. Why did not staff intervene?
- Bed sores, stage IV. Why were these not observed and treated before?
- Wandering out of the facility
- Assault by staff or another resident.
On a quick review one can see that none of these cases would be thought to be a “result of the disease process.” While that first thought may not be accurate, these are the kinds of cases that merit review.
There are the other cases where answers to questions are not so obvious. Suppose your family member has bruises over her body. That could be evidence of abuse or improper handling of the patient. They might also simply be a reflection of the fragile state of the resident. She may bruise easily with ordinary assist with transfers.
One might notice that there are some problems not listed. Examples include giving a resident the a medication that was supposed to be discontinued, or failing to give the medication to the resident. What if a resident’s condition deteriorates and is rushed to the emergency room near death? Did the lapse in treatment cause the harm or was it “the disease process?” These kinds of cases involve the question of malpractice.
Malpractice involves the judgment of a licensed professional such as a doctor or nurse. For example suppose a resident wandered out the door more than once. Suppose the treatment was a nightly sedative to which she reacted very badly and which ultimately lead to her death through a series of complications. One may easily conclude that the doctor’s decision to give the prescription lead to the resident’s death. But it is not that easy. This was an exercise of medical judgment and these always have necessary risks. That is what doctors do. Balance benefits and risks.
So, what does the family do when they see their resident’s condition getting worse? What about prevention of death or serious injury? This is another subject in itself, but here is a quick and perhaps obvious tip. Be a patient advocate.
A nursing home is not a place for a passive patient advocate. If your family member fell, find out what happened and what is being done. Watch for sudden weight loss, signs of dehydration or sudden confusion. You might do the resident’s laundry if you consistently observe soiled clothing. While incontinence is unpredictable, the resident should receive reasonably prompt attention. Start inquiring if you observe withdrawn or fearful behavior toward staff. Put dates on bandages to monitor how frequently those are changed. Do you question whether a problem is being treated? Ask the nurse to review the chart you can see what conditions are being addressed and get an idea of what should be happening. The resident’s patient advocate has a right to see the medical chart. If you are denied access you can contact the assigned Long Term Care Ombudsman assigned to the facility.
Bottom line: if you have a question, give us a call. We will refer you to an attorney experienced in nursing home injury cases.
