Nursing Home Malpractice: Who Protects the Most Vulnerable?

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John Hopkins

Nursing Home Care — Who protects the most vulnerable?

» Written by // October 9, 2017 //


Who protects the elderly citizen?

A recent article in Law360 suggested that nursing home claims may rise in the wake of Hurricane Irma and the Hollywood Hills Nursing Home tragedy.

The article seemed to downplay the problem in nursing homes. It should not have. Certainly I am sure problems have been exacerbated by the recent storms, but treatment of our ill and elderly by the nursing home conglomerate has always been problematic.

I have recent, personal experience with rehabilitation hospital care now adding to my case experiences of investigating nursing home cases involving neglect and abuse over the years.

How can healthcare professionals neglect the needs of those who are the most vulnerable – the sick and the elderly? It is all about profit driven health care.

In Florida we have a patient’s rights statute designed to provide nursing home residents with the very basic of protections. But, who enforces residents’ rights when violated, ignored or neglected? In Florida that should be agencies like the Agency for Health Care Administration (AHCA) We also should be able to look to our lawmakers in the legislature for protection, right? The fact is that only will work if legislators stop cozying up to nursing home conglomerates and passing laws to shield their liability, isn’t that a good thing? And we do not see that happening at the present.

The General Accounting Office (GAO) has issued a report concluding that state surveyors who evaluate the quality of nursing home care understate the extent of serious care problems:

“…nationwide, approximately 70 percent of federal comparative surveys identified state surveys missing at least one deficiency at the lowest level of noncompliance, and in all but five states the number of state surveys with such missed deficiencies was greater than 40 percent. Undetected care problems at this level are a concern because they could become more serious if nursing homes are not required to take corrective action. The most frequently missed type of deficiency on comparative surveys, at the potential for more than minimal harm level and above, was poor quality of care, such as ensuring proper nutrition and hydration and preventing pressure sores. Federal observational surveys highlighted two factors that may contribute to understatement of deficiencies: weaknesses in state surveyors’ (1) investigative skills and (2) ability to integrate and analyze information collected to make an appropriate deficiency determination. These factors may contribute to understatement because they directly affect the appropriate identification and citation of deficiencies. CMS has taken steps to improve the federal monitoring survey program, but weaknesses remain in program management and oversight.”

What is at the root cause of many neglect issues in nursing homes and rehabilitation centers? Under staffing to improve the bottom line. You can see this happening if you spend much time in a nursing home facility:

  • Nurses do not see patients on a planned and set schedule – only as absolutely necessary.
  • CNA’s and other less expensive staff are given medical-professional responsibilities outside their expertise level to support low staffing levels.
  • High turnover of staff due to high stress, high patient to healthcare provider ratio.
  • Lower quality staff resulting from lower wage.

A recent admission of a patient I know to a Gainesville facility resulted in no drug regimen entered in the rehabilitation hospital chart, although prescribed by the physician. No diet confirmed with the transferring physician and no confirmed medical plan for care at the receiving rehabilitation center. This was a patient with known pulmonary clots and congestive heart failure, but no medical plan existed at the rehabilitation center for clotting studies, continued heparin, or drug treatment continuation.

Another failing in nursing homes can be about diet. Depending on the patient’s reason for admission, diet can sometimes be of critical importance. A cardiac patient with a history of heart failure may want to avoid high salt, high cholesterol foods. In the above circumstance witnessed, the patient had turkey, peas with carrots and stuffing on her dinner menu. What was served? Sloppy joe, tater tots and pudding; a high salt, high cholesterol, high fat meal. Why would this happen? Possibly because the rehabilitation hospital can charge a higher price for a cardiac diet, but reap rewards for serving a lower cost, less healthy meal.

Who protects nursing home and rehabilitation residents and patients in the real world? There are few effective protections. Many nurses and other professionals would like to provide better care, but when the ratio of patient to nurse is so unwieldy, it is difficult to do much more than run from one patient to another.

The state has no agency that actively enforces laws against nursing home abuse. The Agency for Health Care Administration inspects and cites nursing homes for violations, but has insufficient resources to conduct comprehensive and repeated inspections with enforcement actions. The system fosters temporary correction of problems with unsupervised operation until the next inspection.

The Florida legislature has spent the last decade trying to make it difficult to pursue claims against nursing homes for injuring and killing residents. They have also successfully de-funded the agencies charged with these duties.

There are no insurance requirements for nursing homes or rehabilitation centers and many operate with no professional liability insurance . Legislators in the last several years have opened the doors to allow out of state conglomerates to own these facilities, while shielding their liability. Arbitration agreements forced upon unsuspecting residents has resulted in the denial of access to courts for residents harmed by nursing home neglect. In effect, lawmakers in Florida have successfully tilted the playing field entirely in favor of corporations who own nursing homes and rehabilitation facilities and against patients/residents.

If you have a loved one in a nursing or rehabilitation facility, visit often:

  • Pay attention to lapses in care and inattention by the staff.
  • Report any failures in treatment to the nursing supervisor and insist they make a note of the lapse.
  • Take copious notes and document what happens with your loved one.
  • Do not be afraid to insist on speaking to the facility administrator if your reports to the nursing staff goes unanswered.
  • Stay in contact with the patient’s primary care physician and tell them the failures in care you are witnessing. Insist they document the information and speak to the facility supervisory staff.
  • Document your conversations. Take pictures if it is appropriate; especially to document wounds and decubitus ulcers (pressure sores).
  • Report violations of the resident’s rights to the Agency for Health Care Administration.

If your loved one suffers an injury because of poor care, do not hesitate to contact a skilled personal injury law firm with the strength and qualifications to take on these corporate health facilities.

It is a sad day when elderly and ill patients have few protections from the very healthcare “professionals” who are supposed to be taking good care of them.


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Searcy Denney 2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409-6601
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Phone: (561) 686-6300
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Tallahassee, FL 32301-1231
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Phone: (850) 224-7600
En Espanol: (800) 220-7006


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