Congressional investigators have confirmed in the report something advocates for the elderly have known for sometime. That is, nursing home inspectors routinely miss, overlook, or minimize problems in nursing facilities that can pose a serious risk to patient health.

In California, nursing homes are inspected once a year by the Department of Public Health, which sets the licensing standards. The GAO report found that state employees missed at least one serious deficiency in 15% of the inspections audited by the federal government.

“Poor quality of care — worsening pressure sores or untreated weight loss — in a small but unacceptably high number of nursing homes continues to harm residents or place them in immediate jeopardy, that is, at risk of death or serious injury,” the report said.

The federal study was done at the request of Senators Charles E. Grassley and Herb Kohl who have introduced a bill to improve nursing home care in the United States, and increase the penalties for violations of federal standards.

The New York Times article can be found here. The GAO report is here (.pdf)

According to reports, the nursing home resident was diagnosed with sciatica in late 2003, and prescribed 15 milligrams of morphine, twice daily. Two days later, while still in the hospital, her morphine dosage was doubled. When she was discharged to Manor Care, both of the prescriptions went with her, and the nursing home staff immediately began giving Culpepper both dosages, twice daily, totally unaware of the mix up.

Attorneys representing the family said the jury blamed the nursing home for failing to recognize morphine intoxication and overdose, and for understaffing.

"ManorCare gave her the morphine and within 24 hours of getting that dosage, she was dead. They weren't watching her," said attorney Brad Astrowsky. "The lesson in all of this is that you shouldn't get transferred to a nursing home on the weekend because the quality and quantity of the nursing staff is very often less than you would find during the week," Astrowsky said.

The jury's verdict won't have to be paid however as the case was settled before the jury reached its verdict.

Last week, the American Association of Justice, the United State's largest trial bar, announced its support for legislation titled The Fairness in Nursing Home Arbitration Act, which allows the decision to arbitrate to be made after a dispute has arisen, not before in the admissions process.

According to the AAJ, the passage of this act will prevent corporate nursing home owners from manipulating the arbitration system in their favor and at the expense of nursing home residents.

Nursing home residents should not be forced to check their legal rights at the door in deference to large corporate interests", said American Association for Justice President Kathleen Flynn Peterson. "Mandatory arbitration denies nursing home residents access to the civil justice system and stands in the way of the quality long term care they deserve. By forcing people into a costly private system, the corporation sets the rules and hand-picks the players.

I can say with experience that most people learn for the first time that they have waived their rights to a court action in favor of arbitration when they contact our office with claims of nursing home negligence. They are usually not happy about it. And clients get more upset when they learn that they have to pay for a portion of the arbitrator's fee, which usually exceeds $250 per hour. Imagine an elderly victim of neglect or abuse being told that he or she has to pay thousands of dollars simply to seek access to justice. Now you're getting the picture of what arbitration is all about.

The director of the Center of Excellence in Elder Abuse and Neglect at UC Irvine is watching closely whether 75 social worker positions will be cut in the upcoming state budget. Mary Twomey stated that such a reduction in the investigation work force could translate into 20,000 allegations of elder abuse or neglect that will go uninvestigated.

The causes of dehydration are several. The most common is vomiting, diarrhea, malnutrition, or the simple failure to replenish the body with the liquids that are lost from sweating and urinating. Sadly, this is the most common cause of the dehydration in the nursing home.

Nursing homes have a legal duty to provide adequate hydration to their residents, and to provide the proper training to their employees to recognize the signs and symptoms of dehydration. The aging process itself will often cause a decrease in appetite, but this is never an excuse for dehydration in a patient (even though it's an excuse frequently used by nursing homes). For patients at risk, nursing homes are required to monitor the food intake and urine output of its residents, and keep the medical doctor informed of the resident's condition. The failure to do this may be a violation of the standard of care.

If you have any questions about dehydration in the nursing home or residential care setting, call Walton Barber LLP at (866) 607-1325.

The costs for living in an assisted living facility also rose dramatically. Nationally, the average annual costs of living in an assisted living or residential care facility averaged $36,000, up 25% since 2004.

Experts believe that the costs of living in a nursing or residential facility will continue to rise if a shortage of long-term care workers is not resolved. As baby-boomers approach retirement, most have not adequately addressed the prospect of needing long-term nursing care in old age. The average person spends approximately 2.5 years in a nursing home, at a cost of over $190,000. Just a year or two in a nursing home can wipe out a persons lifetime of savings.

According to reports, the couple advertised a certificate of deposit investment product that they claimed would return between 7 and 7.5%. In meetings at their offices, the Reiswigs persuaded their mostly elderly clients to write checks that they promised would be invested. They weren't. Instead the victims were sent phony CDs from the Reiswig's company Global Reserve BT, and the couple then used the money for their personal use.

One East County woman, who is 76, said Friday she lost $63,000 to the alleged investment scam. It was nearly everything she had saved, after a lifetime of setting aside $25, maybe $50, a month. Now, she said, she is reduced to living on her Social Security check, which is less than $1,000 a month, to cover gas, food and rent. Money is so tight, she said, that she quit going to church most days of the week because gas is too expensive.

Financial or fiduciary elder abuse is a growing problem in our society. As fewer people save sufficiently for retirement, those looking for ways to catch up or get ahead may find themselves in the grasp of unscrupulous investment advisers who offer generous investment returns that "look to good to be true." It goes without saying that anyone investing in an investment product that is "new" or "different" than what is conventional or widely accepted should seek a second opinion. The same goes for the advisors that offer returns that far exceed what the current market is offering.

As for the Reiswigs, police are asking those who think they, or someone they know may have been victims to contact investigator Joseph Cargel in the district attorney's office in San Diego at (619) 531-4040.

When I am asked to recommend a home I typically refer people to the Nursing Home Guide. A web resource published by the California Advocates for Nursing Home Reform (CANHR) that provides detailed information about every licensed nursing home in the State of California, including information about prior complaints, citations, ownership, and the services provided. At the site you will also find a nursing home evaluation checklist, which provides a list of things to think about when looking for a nursing facility.

In addition, CANHR also now has a Residential Care Facility Guide which provides information about all licensed residential facilities in the state. The information there is limited, simply because public information about those facilities is not as available.

I encourage you to look at CANHR’s site. It is simply an awesome resource for nursing home, assisted living, and residential care information.

The bipartisan legislation seeks to develop educational strategies to increase the awareness of falls, support research to identify populations at risk for falling, and encourage projects that promote fall prevention. In California, health officials say they will make fall prevention a major priority starting this summer.

According to the CDC, almost $20 billion dollars is annually on medical costs related to elderly falls, most of which is paid for the Medicare and Medicaid. Because of the aging baby boomers, that figure is expected to rise to $43 billion by the year 2020.

This comic strip is from the LA Times. We've had this case. The angry caregiver who assaults the nursing home resident, usually over some frustration related to care. Not so funny when it really happens.

According to reports, The Springs at the Carlotta, a 59-bed nursing home in Palm Desert, the elderly resident had suffered from constipation for 24 days. The nursing facility allegedly knew the woman was suffering from constipation when she entered the facility only weeks before her death, but failed to monitor her condition or her treatment. When she began to vomit on June 22nd, she was sent to the hospital where tests confirmed that her colon had perforated due to the constipation. She developed severe peritonitis and died a week later.

It took more than a year for the Department of Public Health to complete its investigation, and the facility has appealed the fine.

These types of deaths occurring all the time in nursing facilities, and are rarely reported. I can only assume that an attentive family member sought to investigate what had happened, because most of the time a death like this is dismissed as just an old person who reached the end of her life, not the result of neglect or negligence by the nursing home staff. Good for the people who looked into this case, and kudos for the state for issuing the citation, even if a year is an appallingly long time to complete an investigation, but that's a topic for a different day.

Let's hope this family gets some justice for what was likely a very painful and suffering death.

Family members should be aware that a bed sore can develop in only a few hours if an area of the skin is subjected to enough pressure that cuts off blood flow to that area. The skin will initially appear red and will be painful, slowing appearing to have a purple color. This is the best time prevent the sore from advancing to something more serious.

Nursing home and assisted living residents are at high risk for developing pressure ulcers, and those residents that are bedridden, wheelchair bound, or those will limited mobility must be examined frequently for the development of bedsores. A small bedsore can quickly become a large sore if treatment is not promptly provided.

Studies show that the best way to prevent these sores is a multidisciplinary approach, where all departments of the nursing home are involved in the prevention and care of bedsores, including departments such as laundry and maintenance. If you are responsible for a resident of a nursing facility, insist that the staff check frequently for the early stages of pressure sores, particularly the areas of the lower back and coccyx, and on the heels.

For more information about bedsore prevention and treatment, visit the Mayo Clinics website on the topic here.

The first step is to find a facility that suits your needs. In may be its location in relation to family or friends, or one that offers a specific service such as dementia care. Once you have narrowed it down to a few, visit the facilities and speak with the administrator or the admissions director, and ask for a tour. While on the tour introduce yourself to other residents and ask them about the facility, the things they like and don't like, and ask if you can speak with the privately. Frequently your first impression is the most accurate, so trust your instincts.

After the tour, return unannounced to the facilities you like best a few days after your tour, and visit at various times of the day so you can see the program it runs throughout the day. It's important that these visits are unannounced so you can see the "real" facility and not the one portrayed on the official tour (hopefully they are the same).

Once you’re close to deciding, go visit to the nearest office of the Department of Social Services, Community Care Licensing and take a look at the facilities’ public file. The file will contain the facilities most recent inspection report, and complaints of abuse or neglect made against the facility over the last two or three years. While you're there, you may want to ask to speak to an evaluator for advice or recommendations, or to see if the facility you are interested in has a good reputation.

After doing all of this, if you're satisfied with your findings, then you've probably chosen a facility that's right for you. There are never any guarantees of course, but by doing the foregoing, you will greatly increase the odds that you will find a facility that works for you.

These arbitration clauses have profound implications, and should be avoided when possible. As this Wall Street Journal article points out, they are a part of a nursing-home-industry strategy to use arbitration agreements to reduce litigation costs, take cases away from juries, and lower compensation awards.

Apparently it has worked. According to a nursing home industry study, average costs to settle cases have begun decreasing as claims of poor treatment are increasing. Nursing homes have learned over the years that neglect or abuse of a vulnerable senior citizen is an emotionally charged thing. And when juries get emotionally charged, they tend to take action to right the wrong that has been committed - usually in the form of verdict commensurate with the wrongdoing - exactly as the U.S. Constitution intended.

Sadly, this is becoming standard practice. In our law practice we frequently get cases of profound injury or death, and discover shortly after taking the case that a jury will never get to hear the terrible story because the victim agreed to arbitrate upon admission; an agreement often entered into months or years before the neglect.

The answer to this problem? Don't sign the arbitration agreement. In California, an agreement to arbitrate must be a separate document from the admission contract itself, and a refusal to sign cannot be the basis for a refusal to admit a resident. The best way to avoid the harsh restrictions of arbitration is to avoid it at the beginning. Another way is to support a nursing home bill introduced last week by two U.S. Senators that would ban the use of arbitration agreements in nursing home contracts. Contact the offices of Senators Boxer and Feinstein and urge them to support this bill.

Class AA: The most serious violation, AA citations are issued when a resident death has occurred in such a way that it has been directly and officially attributed to the responsibility of the facility, and carry fines of $25,000 to $100,000.

Class A: Class A citations are issued when violations present imminent danger to patients or the substantial probability of death or serious harm, and carry fines from $2,000 to $20,000.

Class B: Class B citations carry fines from $100 to $1000 and are issued for violations which have a direct or immediate relationship to health, safety, or security, but do not qualify as A or AA citations.