California Nursing Home Abuse Lawyer Blog

The U.S. Court of Appeals, 3rd Circuit has ruled that the Federal Nursing Home Reform Amendments grants residents of county-operated nursing homes the right to bring civil rights claims for allegations of abuse, neglect, or other care-related complaints.

The ruling arose in a case involving the 80-year-old Melvinteen Daniels, who died in a county-run nursing home as a result of neglect, malnourishment, and pressure ulcers. The family brought a lawsuit against the nursing home alleging, among other things, civil rights claims under Section 1983. Challenges to the claims wound their way through the courts and leading to yesterday's ruling.

In a 23-page opinion, U.S. Circuit Judge Richard L. Nygaard held that, "the language used throughout the FNHRA is explicitly and unambiguously rights-creating. These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients."

Nygaard also went on to hold that the FNHRA "guarantees" nursing home residents the right to be free from physical abuse, corporal punishment, involuntary seclusion, or restraints imposed for the purposes of discipline or convenience. (Read the opinion here)

The FNHRA was passed in 1987 as amendments to the Medicare Act, and designed to address nationwide concerns over nursing home care.

The elder abuse lawyers at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has been abuse or neglected in a Southern California nursing home or assisted living facility.

Every year, nursing homes throughout the state of California are fined for deficiencies found in state investigations, frequently related to nursing home care. The fines range anywhere from a Class B fine of $1,000 to an AA citation of $100,000, as was recently issued against the Encinitas nursing home Aviara Healthcare.

But California officials concede that collecting these fines can take years, if they are collected at all. Nursing homes have a right to appeal fines that are issued, and most do. In the year 2007, the state issued more than $2 million in fines and to date has collected less than 10 percent.

The California Department of Public Health is charged with the oversight of skilled nursing facilities, and is the state department that issues and collects nursing home penalties. They simply don't have the manpower to get the job done.

"Because the department doesn't have enough attorneys, their appeal system is broken right now, they don't even have enough administrative law judges to process the appeals," says Pat McGinnis, director of the California Advocates for Nursing Home Reform."

The nursing home industry is using the system to its benefit. Because of under funded enforcement, nursing homes know that appealing any penalty presents an opportunity to either negotiate the fine down to a negligible amount, or will simply drag the matter on for years.

The nursing home malpractice lawyers at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has suffered from abuse or neglected in a nursing home or residential care setting.

By 2050, 1 is 6 people in the world will be 65 or older, forcing the countries of the world deal with an aging population. The number of senior has jumped an astounding 23 percent in the last decade.

According to studies, the world's population has been graying for decades due to declining birthrates and an increase in longevity. Italy, Japan, Germany and Monaco have the most senior citizens, with more than 20 percent of their respective populations over 65 years of age.

Here in the United States, residents who are 65 or older represent approximate 13 percent of the overall population, but that number is expected to double in the next 40 years. This raises serious concerns as to how we are going to be able to handle the growth.

"The 2020s for most of the developed world will be an era of fiscal crisis, with a real long-term stagnation in economic growth and ugly political battles over old-age benefits cuts," said Richard Jackson, director of the Global Aging Initiative at the Washington-based Center for Strategic and International Studies.

For example, at current aging rates, Medicare is projected to become insolvent by 2017.

The nursing home abuse and neglect lawyers at Walton Barber LLP represent individuals and families whose loved one has suffered injury or neglect in the nursing home, assisted living, or residential care setting. For a free and confidential consultation call (866) 607-1325.

State investigators issued a $100,000 fine to nursing home Aviara Healthcare Center in Encinitas after finding that a resident's death was caused by neglect. The resident died of blunt force trauma after a fall.

According to reports, the resident was at the nursing home to rehabilitate a broken hip, and suffered a fall on May 9 when trying to get out of bed. The following morning at 3 a.m., the resident got out of bed and stumbled into the hallway. A nurse saw him grab onto a large Hoyer lift (a large mechanical lift), which toppled over on top of the resident. The lift struck him in the head, causing a deep cut and a severe brain injury. He died three days later.

Investigators concluded that Aviara Healthcare was negligent for storing the large mechanical lift in the hallway outside the resident’s rooms, and received statements from several employees who stated that the lift was supposed to be stored elsewhere. As a result, a Class AA citation was issued.

Based in Carlsbad, the nursing abuse and neglect lawyers at Walton Barber LLP provide free consultations to individuals and families whose loved one has been injured or killed in the nursing home or assisted living setting. Call (760) 607-1325 for a free and confidential consultation.

A Westlake nursing home called Lakewood Manor North was issued the state's most severe fine after an 83-year-old resident died in January 2007.

According to reports, the patient, who was totally dependent on staff, lost his balance and fell when he was being transferred to his wheelchair, striking his head on a bed rail. Shortly after his fall, nurses noted bluish discoloration on the left side of his head. His condition continued to decline throughout the day, and the man complained of not feeling well. During the evening, after consulting with a physician, the man was transferred to a local hospital at 9:30 p.m., where he was diagnosed with severe bleeding on the brain. He died five days later.

Investigators with the California Department of Public Health faulted the nursing home for failing to take action earlier, when it was clear the resident was suffering a significant change in condition.

“Failure of the facility staff to immediately notify the physician and to provide the necessary care and services to [the resident]... presented a substantial probability that serious harm would result, and did result in the resident's death,” the report said.

Another serious matter not discussed in the article is why it took so long for the CDPH to complete its investigation. The resident died nearly two-and-a-half years ago and only now it has completed its investigation. If the family was just now learning about the wrongdoing of this nursing home it would not likely be able to bring any legal action against it because of statute of limitation problems.

Walton Barber LLP represents seniors and dependent adults who are victims of neglect, abuse, mistreatment, and malpractice in the nursing home, assisted living, and residential care setting. Cases in all Southern California counties are accepted, including San Diego, Los Angeles, Orange, Riverside, San Bernardino, Ventura, and Imperial.

A report published by the National Nursing Home Survey finds that between 1999 and 2004 the number of nursing home beds and nursing home residents declined in the United States. The number of nursing home beds dropped more than 10%, or 200,000 beds, and there are approximately 100,000 fewer nursing home residents.

The survey also found that more nursing facilities are certified for both Medicare and Medicaid, and that the vast majority of caregivers were not licensed nurses, but Certified Nursing Assistants. Also, it was found that a small fraction of nursing home residents are independent, and need no help with their activities of daily living, which a slight majority, 51.1%, needed assistance with all daily activities.

To read the entire survey, click here. (.pdf)

Walton Barber LLP is a personal injury law firm that represents individuals throughout Southern California in all types of injury and accident cases, including wrongful death and nursing home abuse and neglect.

The California Department of Public Health has issued fines to two Orange County nursing homes after concluding that negligent nursing care lead to the deaths of two residents. Alamitos West Health Care Center in Los Alamitos was fined $100,000.00, and Huntington Valley Healthcare in Huntington Beach was fined $80,000.00.

Investigators found that Alamitos West failed to give an 82-year-old female resident adequate fluid, causing her to suffer dehydration and kidney failure. When the woman was finally transferred to a hospital, her dehydration had caused an altered mental status. The woman died a week later, on Christmas Day.

The case against Huntington Valley involved the failure to call 911 as a patient was dying. According to reports, the caregiver thought the resident did not want resuscitation if life saving treatments was needed, but the resident had actually stated in his chart "I Do Want C.P.R." The resident died in the nursing home.

Alamitos West has said it will appeal the citation, while Huntington Valley told news reporters that it has not decided whether or not to appeal.

The nursing abuse and neglect lawyers at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has been abuse or neglected in a Southern California nursing home or assisted living facility.

California law allows the creation of "family councils" by relative of a nursing home resident to help influence the quality of care given to a resident. Not merely gripe sessions, these councils can facilitate communications between families and residents with the nursing home staff and caregivers, and also offer peer support for friends and relatives of the resident, and help prevent substandard care.

A nursing home may not prohibit the formation of a family council, and must allow the council to meet on the grounds of the facility at least once a month. In addition the home must designate a staff member who is responsible for assisting the council, and to respond to all written requests made by the council.

The California Advocates for Nursing Home Reform provides excellent resources for the creation and maintenance of a family council, and advice as to how the make the council an effective tool to promote high quality care. (Click here to access the CANHR site)

CANHR also provides an excellent video about family councils, and how they can make a big difference:

The elder abuse and neglect lawyers at Walton Barber LLP represent individuals and families who believe a loved one has suffered abuse or neglect in the hospital, nursing home, or residential care setting. For a free and confidential consultation call (866) 607-1325.

When Doris Weaver saw her mother's black eye at the local hospital emergency room where she had been taken from a nursing home, she was stunned.

"She had a bruise from her temple all the way down to her lower earlobe," said Weaver. "Her eye was black and was swollen."

Weaver demanded to know what caused her mother's injury, and even filed a police report, but to date she has gotten now answers...from anyone, even her mother, who cannot speak. [Read the entire story here]

Like elder abuse victims all over the county, Weaver's mother is unable to tell her story because of her advanced dementia. Because of memory impairment problems caused by dementia and Alzheimer's disease, many aging Americans under professional care are unable to communicate, and unable to tell family members when they are subjected to abuse or neglect. Our firm has one such case right now, involving a non-communicative Alzheimer's disease patient who was struck in the face by nursing caregivers, but unable to tell her horrible story.

Any unexplained incidents of bruising or dramatic changes in mental status should be reported to the resident's physician right away, and the local ombudsman office.

The elder abuse and neglect lawyers at Walton Barber LLP represent seniors and dependent adults who are victims of neglect, abuse, mistreatment, and malpractice in the nursing home, assisted living, and residential care setting. All case consultations are free and confidential.

There is a short but solid article in a New Jersey paper today addressing the signs of elder abuse. New Jersey attorney Victoria Dalton lays out the real world signs and symptoms of elder abuse, which she defines simply as taking advantage of the elderly.

Physical Abuse

Physical abuse is simply the use of physical force which causes bodily injury, pain or some other type of impairment. It can also include hitting, shaking, slapping, kicking, or pinching. The signs to be aware of include bruises, broken limbs, welts, cuts, burns or marks.

I would add neglect to this list. Neglect is the failure to provide case and often reveals itself in incidents of malnutrition and dehydration, pressure sores, untreated infections. In realty, any unexplained injury, infection, or death can be a sign of physical abuse or neglect.

Financial Abuse

Financial abuse is more subtle, and is essentially the improper use of the senior's funds, property or assets. A common indicator of financial abuse is when the elder's contribution to household services is disproportionately high when compared to an adult child living in the home. Another tell-tale sign is a change in banking habits. Be aware of any large withdrawals by a person accompanying the senior.

Emotional Abuse

Emotional abuse typically includes intimidation, humiliation and harassment. Degrading remarks, or treating the elder like an infant, giving the older person the silent treatment, are also examples of emotional elder abuse.

Elder abuse can be stopped, Dalton writes, if we are simply more vigilant.

The nursing home malpractice lawyers at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has suffered from abuse or neglected in a nursing home or residential care setting.

The California Advocates for Nursing Home Reform (CANHR), a statewide advocacy organization dedicated to improving care for California seniors, has launched a weekly radio program for seniors. The show is called Elder Issues and Answers, and his hosted by Pat McGinnis and Prescott Cole. The show airs Saturday mornings at 9:30 am, can be heard online at KTRB860.com. (Click here to listen)

McGinnis and Cole are leaders with CANHR, and are experts in the areas of elder care. Upcoming shows will feature guests, and will cover such topics as trust mills, nursing home abuse and neglect, financial elder abuse, reverse mortgages, resident's rights, and Medi-Cal Recovery. Tune in.

The California Advocates for Nursing Home Reform (CANHR) have issued a press release addressing a Santa Monica nursing home that has neglected residents with impunity, and contending the state has done little to correct the problems. In the release, CANHR contends that a resident died while staff ignored breathing problems, another died from an infected bed sore, and a third was hospitalized with a neglected pressure ulcer, yet the home received no serious penalties from the California Department of Public Health who verified the neglect.

CANHR's concern about this is shared by many, including this law firm. We have had several cases of outrageous acts of abuse and neglect that have confirmed by the state investigation, but no serious penalties issued. Take for example a case we recently accepted. An elderly Alzheimer's patient is given a bath by caregivers at the nursing home where she resides. Because of her disease, she tends to resist care, and did resist when five caregivers tried to put her in the bath. One caregiver got so angry that she punched the resident in the face, causing a black eye and severe bruising. The resident couldn't complain because she cannot speak (because of her disease).

When the family asked why mom had a black eye, the facility lied and said she fell. It was only after one of the caregiver's conscious got the best of her when the incident was reported to the state. The state investigated and confirmed the abuse, but did the state issue a citation? Of course not; only a deficiency, and not for the physical abuse itself, but for the failure to report the abuse. But maybe the State didn't think the resident was actually “punched” or “struck” by the nursing; it doesn't use those words in its investigation report. Instead it says that the nurse "put her fist to the patient's face." No punch, no citation, no fine.

We have several more examples of this, as I am sure CANHR does, and most other nursing home abuse and neglect lawyers in California. As CANHR says:

It is common for DPH to issue very small fines for severe neglect and abuse. Of equal concern, DPH only collects a small percentage of the fines it issues to nursing homes. According to its records, it has collected less than a third of the fines it has issued in the last three years. Although California law and a court order obtained by CANHR require DPH to begin onsite investigations within 10 working days of receipt, the investigations of the two bedsore complaints were conducted 15 to 18 months after the complaints were filed.

To read the press release and to see copies of the DPH reports click here.

In the promotion of an HBO series called "The Alzheimer's Project," The San Diego Union Tribune featured an interview with Dr. Paul Aisen, director of the Alzheimer's Disease Cooperative Study at UCSD, who is also featured in the series. Dr. Aisen is, if anything, very optimistic about the development of Alzheimer's treatments, and says that there are several excellent candidate drugs in clinical trials.

Do you think finding effective treatments, even a cure, for Alzheimer's is no longer hopeless?

I do. I think the likelihood is that in the foreseeable future, we will make very major progress in controlling the disease. The science has advanced to the point where we have highly promising targets for drug development, excellent candidate drugs in clinical trials. One or more of these current programs will be successful.

There are already some drugs on the market, though their benefits are fairly modest and symptomatic. They improve a little bit the cognitive symptoms of Alzheimer's without changing the disease or its course.

It will be different with the next generation (of drugs). They will target not the symptoms but rather the underlying pathology. Specifically, we recognize that Alzheimer's is driven by a specific molecule – the amyloid peptide. If we discover how to control the accumulation and toxicity of this molecule, we ultimately may be able to halt the progression of the disease. We're already making excellent progress at recognizing the disease at a very early stage.

For those impacted by this devistating (and incurable) disease, Dr. Aisen offers more than a glimmer of hope. It seems to just a matter of time before these treatments are available.

For the entire interview with Dr. Aisen click here.

An 89-year-old nursing home patient in Australia was bitten by mice, which shredded parts of his ears, head, and neck. According to reports, this victim of elder neglect was bedridden, and had the tops of ears severely chewed. A federal official, who has launched an investigation into the matter, said it was "extremely disturbing and traumatic" for the resident and his family. We couldn't agree more.

Here's a video report:

The San Diego elder abuse and neglect attorneys at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has been abuse or neglected in the nursing home or assisted living setting.

A Pico Rivera nursing home has been issued a $100,000 fine and an AA citation for the death of one of its residents in December. The California Department of Public Health announced that the citation was given to Riviera Healthcare Center on Telegraph Road after a 64-year-old man lit himself on fire while trying to light a cigarette.

According to reports, the resident, who was confined to a wheelchair after suffering a stroke, was left unattended in the dining room. When he caught fire, staff was alerted, but panicked, and failed to use a fire extinguisher and fire blanket that was just six feet a way.

The man was rushed to the nearby hospital with third-degree burns to his legs, groin, butt and hand. Skin grafts were attempted, but failed to take and the man died 18 days later.

This is Riviera Healthcare Center's first fine this year. Earlier it was issued a $20,000 find for an administrative violation.

The Los Angeles nursing home malpractice lawyers at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has been abuse or neglected in the nursing home or assisted living setting.

A study of bed sore rates in nursing homes with a high concentration of Hispanic residents found that Hispanics were more likely to have bed sores (or pressure ulcers) than nursing homes with less Hispanic patients. The researchers looked at two data sources, the Minimum Data Set, federally mandated health evaluations required for every patient, and the Oscar database, a collection of health information of nursing home residents.

"A systemic evaluation of the difference in the process of care between high- and low-quality nursing homes is warranted in order to reduce nursing home disparities," said Michael Gerardo, adjunct assistant professor at Brown University.

Only nursing home residents living in free-standing nursing facilities in Arizona, California, Colorado, New Mexico, and Texas were included in the study.

The elder abuse and neglect attorneys at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has suffered from abuse or neglected in a nursing home or residential care setting.

The Ombudsman Services of Northern California, an organization dedicated to creating a corps of compassionate advocates for residents in long-term care facilities believes that state budget cuts to its ombudsman program will lead directly to an increase in cases of elder abuse and neglect.

This year the organization, which tracks approximately 1,600 nursing homes and assisted-living facilities, lost two-thirds of its staff due to shortfalls in the state budget. According to Joan Parks, nursing facilities are already taking advantage of the lack of oversight.

"Our monitoring in these homes was seen as a form of prevention," Parks said.

The nursing home abuse and neglect attorneys at Walton Barber LLP provide free consultations to individuals and families who believe a loved one has been abuse or neglected in the nursing home or assisted living setting.

In increasing numbers, young and middle-aged mentally ill patients are being housed with older people in nursing homes. It has proved to be a dangerous practice for older residents. The younger, stronger, mentally-disturbed residents have lashed out at the older, frailer residents who often are defenseless against the attacks. Sons and daughters of the elderly victims of attacks are left wondering why their loved ones were not protected better.

In the past seven years, there has been a 41 percent increase in the number of mentally ill patients housed in nursing homes, which as led to a correlated increase in peer-on-peer physical abuse. The reasons for the increase are multi-fold, including the fact that states have failed to provide adequate facilities for the mentally ill. It is also financially advantageous to house the mentally ill and the elderly together. But while it may make financial sense, it puts the elderly at risk and inadequate measures have been taken to protect the elderly.

Under state and federal law, nursing home residents are guaranteed freedom from physical abuse. At Walton Barber LLP, we have represented victims of violent attacks in nursing homes. These attacks are often a result of negligence on the part of the facility including a failure to provide adequate staffing. If you have questions about the care of your loved one in a nursing home, please contact Walton Barber LLP for a free and confidential consultation.

Every year the typical nursing home will report approximately 1.5 falls per bed, and most falls go unreported. In fact, studies show that 75% of nursing home residents will fall at least once in a year, and nearly one-third of those involve a resident who is deemed non-ambulatory. Sadly, approximately 1,800 people living a nursing facility die every year due to a fall.

Can falls be prevented? Yes, and they should be. With proper care planning, many if not most falls can be prevented in the skilled nursing setting. For example, each resident must be accurately assessed on a regular basis for risk of falling, and when there is a fall, proper assessment must be performed to determine the cause of the fall, and how another might be prevented in the future.

In addition, physical changes in the nursing home can help prevent falls, including the placement of grab bars, lowering beds, and raising toilet seats. Bed alarms can also prevent a fall in a resident who is a known risk.

Yet, in our experience, many homes fail to take appropriate precautions after a resident is deemed a fall risk.

Not every fall is due to nursing home negligence, but many are. The nursing home abuse lawyers at Walton Barber LLP have litigated numerous cases involving injury causing falls in the nursing home setting, usually after the facility has failed to take appropriate measures after an initial fall. If you have questions about care in the nursing home, please contact Walton Barber LLP for a free and confidential consultation.

U.S. News & World Report is out with an article on the common problems found in U.S. nursing homes in an interview with attorney Eric Carlson, author of 20 Common Nursing Home Problems. As a nursing home abuse lawyer, I found the article enormously helpful; particularly the answer to the first question, which I think is the most important:

What can consumers do to best protect themselves up front?

Be aggressive about questioning a prospective home about staffing and staff training. A nursing home generally receives $4,000 to $9,000 a month for the care of one resident, so it should be responsive to both residents and potential customers. Talk to residents and visitors without nursing home staff hovering nearby. Visit several times, at different hours and on different days. Make at least one visit at mealtime. Examine inspection reports. Each nursing home that accepts Medicare or Medicaid payment is inspected approximately once a year. And the National Citizens' Coalition for Nursing Home Reform offers a consumer guide to getting good care in a nursing home.

Other questions include Alzheimer's care, nursing home staffing, and nursing home rights. I encourage all who are investigating nursing home care, or currently have a loved one in a nursing home to read the complete article which can be found by clicking here.

The elder abuse attorneys at Walton Barber LLP represent individuals and families throughout Southern California who have suffered due to abuse or neglect in the nursing home and assisted living setting.

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.

Just before leaving the White House, President Bush enacted a rule that designates state inspectors of nursing homes as federal employees, making it more difficult to obtain evidence obtained by those inspectors in private lawsuits against nursing homes for abuse or neglect, such as those pursued by Walton Barber LLP.

The new restriction affects about 16,000 nursing facilities in the United States, and will require litigants to go to greater lengths to obtain information that used to be routinely given. In short, the rule prohibits state health departments (such as the Department of Public Health in California) from participating in private lawsuits that are in the federal assistance program.

Bloomberg.com has more on the story here.

California ombudsman Nona Tolentino's job is to investigate cases of suspected elder abuse in nursing homes. Her conclusion after years as in the business: be afraid, be very afraid.

The biggest problem Tolentino faces is trying to prove the allegations. "I call it the conspiracy of silence," she said, because many nursing home residents and their family are reluctant to talk about, frequently out of concerns of retaliation or being evicted from the facility. Tolentino believes strongly that nursing home residents have fundamental rights to be free from physical and verbal abuse, unnecessary restraints, or involuntary seclusion.

Tolentino is mostly right. If one were to visit the local office of the California Department of Public Health and pull the file of any large nursing home in the region where they lived, they would be startled by the number of complaints made and investigated. More troubling, however, would be the realization that the vast majority of complaints are "unsubstantiated;" meaning the investigator could not prove the allegations are true.

This is a real problem. Not that every complaint is meritorious, but that the investigation and enforcement of these complaints is very inadequate. In our office, we have litigated numerous cases involving horrendous cases of neglect or abuse where a formal state investigation had previously found no wrongdoing. Sadly, because of California's budget woes, this probably will not change anytime soon.

Three California nursing home employees were arrested yesterday for allegedly injecting 22 residents with mood-altering drugs to keep them quiet and restrained. According to the criminal complaint, a nursing director, a pharmacist, and a physician drugged the residents in order to keep them compliant and easier to care for. Three of the patients died.

“These are powerful medications that were given, in some cases against people’s will, primarily for management, not health reasons,” said California Attorney General Jerry Brown. “It's unconscionable behavior and it’s certainly not what people expect when they entrust their parents or grandparents to a skilled nursing home.”

The allegations in the criminal complaint are appalling, including residents becoming "zombie-like" and unable to eat or drink for days, causing severe malnutrition and dehydration. The three residents who died were Fannie May Brinkley, Eddie Dolenc, and Joseph Shepter. At least one civil lawsuit has been filed as a result of the deaths, and more are expected.

The use of powerful narcotics as chemical restraints is an ongoing problem in nursing homes. Under California law, a resident, or his/her responsible party must be thoroughly informed about the risks associated with anti-psychotic medications, and must approve any request for us. These medications must also be administered only with a doctor's order.

Lemon Grove Care and Rehabilitation (San Diego County) has received the state's most severe citation after the burn-injury death of a 74-year-old resident. State investigators found that the facility failed to adequately supervise the resident, who caught fire while smoking at the facility. According the reports, the woman was sitting in the designated smoking area trying to light a cigarette when her jacket caught fire. She died 10 days after suffering her injury.

The nursing home has been issued an "AA" citation and a fine of $80,000.00, which it intends to challenge in Superior Court. Lemon Grove Nursing and Rehabilitation received two Class B citations last year (click here), and is currently under investigation for separate allegations of neglect in a case being handled by Walton Barber LLP.

Walton Barber LLP represents individuals and families throughout Southern California in cases involving nursing home abuse and neglect. All consultations about a case are free and confidential.

Southern California legislators are supporting a proposal that would require nursing homes to post their ratings on the front door, much like health grades are posted at restaurants. Yesterday, Assembly Bill 215 was introduced in the California legislature to require that any nursing home that receive federal money to prominently display the rating it received under the federal government's recently unveiled five-star rating system.

“Posting nursing home grades is crucial to ensuring our loved ones receive the high quality of care they deserve,” State Representative Mike Feuer (D-Los Angeles) said in a statement. “This legislation will give families valuable information and provide an additional incentive to facilities to achieve the highest standards.”

Last month, Los Angeles County supervisors voted unanimously to require that any nursing facility that receives Medicare and Medi-Cal funding to post their ratings, and inform all new residents of the rating. The ratings are based on federal inspections, using three years worth of data.

To go to the federal ratings website click here.

The attorneys at Walton Barber LLP represent individuals and families who have suffered due to abuse or neglect in the nursing home setting. Cases are accepted throughout Southern California.

San Dimas nursing home Casa Bonita Convalescent Hospital was fined $121,000 by the Department of Public Health after the death of 88-year-old resident Rita Twomey. State regulators issued three citations after finding that caregivers turned off the alarm of a ventilator keeping the resident alive. When the ventilator malfunctioned, no alarm was sounded and the resident died.

According to reports, Twomey's daughter found her mother in bed with her lips and fingers blue. Tragically, the daughter tried to keep her 91-year-old father, whom she had brought for a visit, from going into the room. "They didn't even get to say goodbye," the daughter said. "That's the heartache."

The 106-bed Casa Bonita disputes the allegations made by the state, and intends on appealing the fines in Superior Court.

The Los Angeles elder abuse lawyers at Walton Barber LLP represents individuals and families throughout Southern California who have been injured or killed in the nursing home setting. Cases are against skilled nursing facilities, residential care facilities and assisted living facilities are accepted, and all consultations are free.

Nursing Home Compare, a five-star rating system used to rate nursing homes nationwide, has been updated and upgraded by the Centers for Medicare and Medicaid Services. The updated website (click here) is intended to make choosing a nursing home easier for searching, and will hopefully have the effect of "outing" those poor nursing facilities that continually under-perform.

This is good news for consumers and nursing home advocates, and elder abuse lawyers. It is also sorely needed. U.S. Census figures project that the number of Americans over 65 will double by 2030, and two-thirds of those will require some period of nursing home care.

Bed rail entrapment is not a rare occurrence in the hospital and nursing home setting. Despite repeated warnings from consumer groups and the FDA, nursing facilities across the country are using hospital beds that violate well known FDA dimensional guideline addressing safe hospital beds and bed rails, creating in increased risk of suffocation and asphyxia.

The FDA has identified seven zones of entrapment, and made recommendations as to the acceptable dimensions of those zones to avoid entrapment hazards. Walton Barber LLP recently handled the case of an elderly woman who was found dead sitting on the floor next to her bed with her head wedged between the bars of her bed rail. She was literally hanging from the bed rail. The firm brought a lawsuit against the facility and the bed rail manufacturer for violations of FDA guidelines and other acts of negligence.

For those interested in learning more about the bedrail entrapment, and the identified zones, click here to see a diagram of the zones of entrapment. The video below is also an excellent instructional aid on the various ways a person can become entrapped in a hospital bed.

The New York Times has a story today about the dramatic increase in hospital patients with bedsores over the last 14 years. A report from the Agency for Healthcare Research and Quality finds that over 500,000 patients admitted to U.S. hospitals in 2006 suffered from a bedsore that was developed either before or during their hospital stay. That represents a whopping 78.9 percent increase over a previous study performed in 1993.

The failure to prevent or treat bedsores has been the basis of several cases here at Walton Barber LLP. Most legal claims arising from bedsores (frequently called "pressure ulcers" or "decubitus ulcers") occur in the nursing home or hospital setting, and involve a bed sore that became a Stage III or Stage IV before appropriate treatment was obtained. Sores that severe can often lead to secondary problems such as infection, and usually require painful treatment.

“Bedsores are preventable, but it’s not easy,” said William Spector, an agency researcher. “It’s not like you just get a prescription and one physician can take care of it. It’s a major team effort that requires a multidisciplinary team of dietary aides, nurses aides, physical therapists and physicians all playing a role.”

For the complete article click here.

If you or a loved one resides in any Southern California county and have a legal question related to the development of a bedsore or pressure ulcer, feel free to give the nursing home abuse and neglect attorneys at Walton Barber a call at (866) 607-1325 for a free consultation, or fill out our confidential online questionnaire.

The County of San Diego paid $1.6 million to settle a case filed by Ruth Lomeo against Edgemoor Geriatric Hospital, a county-run nursing home.

According to the lawsuit, Lomeo, who was only 44, was given an overdose of fentanyl pain medication by nursing staff at Edgemoor and began to have trouble breathing. It took over 20 minutes for 911 to be called and for emergency help to arrive. It was alleged that the lack of oxygen caused brain damage, and that Lomeo now communicates like a five year old, and cannot care for herself.

The County of San Diego denies all the allegations, and states its decision to settle the case was a business decision to avoid a jury verdict.

The overuse of medications is a common problem at nursing homes, whether done negligently or intentionally. The negligent overuse of medications arises in situations like Lomeo’s, when a previous fentanyl pain patch was not removed before a new one was placed. The intentional overuse often arises when facilities use medication to alter the behavior or “restrain” a resident. Both uses are unacceptable.

Walton Barber LLP represents people who have been impacted by abuse or neglect in the nursing home, residential care, or assisted living setting. Cases are accepted in San Diego County, Riverside County, Orange County, San Bernardino County, and Los Angeles County, and consultations are free.

The Des Moines Register reviewed 81 bonus payment programs in over 30 states and found that numerous nursing homes with a below-average care giving rating were receiving quality-of-care bonuses. The newspaper looked at eight federal bonus programs in states where regulatory violations by a nursing home do not automatically disqualify a nursing facility from receiving a bonus. The eight programs analyzed are costing taxpayers $313 million per year.

By way of example, the Grace Living Center in Oklahoma earned approximately $96,000 in bonuses during the last year despite federal records that show the home has been cite for more violations than the state or national averages. Toby Edelman of the nonprofit Center for Medicaid Advocacy called the bonuses "preposterous," and pointed out the incongruity of the government taking money from bad facilities by issuing fines, then returning the money in the form of a bonus. "It just doesn't make any sense," Edelman said, "it's totally confusing to consumers."

Legislation approved earlier this year says the bonuses will continue at least through June 2009.

The California Long-Term Care Ombudsman Program is the state program responsible to investigate and resolve complaints made by individuals (or their representatives) residing in long-term care facilities such as nursing homes. Last week, when the California budget was signed by Governor Schwarzenegger, he cut state funding for the ombudsman program.

The decision has not gone over well with elder care advocates. The governor's cuts removes roughly 15% of the budget for the program, which translates into a loss of 1.25 of every 3.7 positions.

To contact your local ombudsman's office call the appropriate telephone number in the geographical area the incident leading to the complaint occurred.

Los Angeles
Region I Santa Monica (310) 899-1483
Region II Los Angeles (213) 617-8957
Region III Reseda (818) 757-1580
Region IV Pasadena (626) 793-3510
Region V Lakewood (562) 925-2346
Region VI San Dimas (909) 394-0416
Region VII Lancaster (661) 945-5563
Region VIII Burbank (818) 563-1957

Orange (714) 479-0107, (800) 300-6222
Riverside (951) 686-4402, (800) 464-1123
San Bernardino (909) 891-3928, (866) 229-0284
San Diego (858) 560-2507, (800) 640-4661

Walton Barber LLP represents people who have been victimized by elder abuse, elder neglect, mistreatment, and nursing malpractice. Cases are accepted in the counties of San Diego, Los Angeles, Orange, Riverside, San Bernardino, Ventura, and Imperial.

The New York Times is reporting this morning that 90% of all nursing homes were cited for violations of federal health and safety standards. Approximately 17% of U.S. nursing homes had deficiencies that caused actual harm. As mentioned in this blog previously, nursing facilities that operate "for-profit" were more likely to have problems than non-profit homes.

Federal inspectors received 37,150 complaints in 2007 about nursing home conditions, the bulk of which involved bed sores, abuse and neglect of residents, medication errors, and nutritional issues. Failure to sufficiently staff was noted as a particular concern in the report, including the allegation that nursing homes “have systematically failed to provide staff in sufficient numbers and with appropriate clinical expertise to serve their residents.” Not surprisingly, researchers learned that elderly patients receive better care at homes with a higher ratio of nursing staff members to patients.

The U.S. has approximately 15,000 nursing homes, housing nearly 2 million people. Under the laws of most states, including California, these homes are inspected once a year.

The elder abuse lawyers at Walton Barber LLP, a Southern California law firm, represents individuals who have been impacted by the abuse of elders and dependent adults while under professional care. All consultations are free, and cases are accepted in all Southern California counties.

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.

Elder Law and Advocacy in San Diego has been providing free legal services for seniors for 30 years, and was profiled in today's San Diego Union Tribune. Whether it's drawing up a will or a power of attorney, helping with a problem landlord, or answering questions about Medicare, Elder Law and Advocacy has assists several thousand San Diego County every year.

Walton Barber LLP has worked with Elder Law and Advocacy on cases involving nursing home abuse and neglect and can vouch for the organization's dedication to the plight of senior citizens.

Carolyn Reilly is the executive director of Elder Law and Advocacy, and says that the demand for free legal services for the elderly is rising - keeping her eight lawyers busy - while the funding for those services remains slim. Elder Law operates on a tight budget, with the vast majority of its income coming from grants and individual contributions. This is a worthy organization that deserves the public's support. It is well-known that a large part of our population is getting older, and organizations like Reilly's will only become in greater demand.

To contact Elder Law and Advocacy call (858) 565-1392 or visit its website by clicking here.

The San Diego nursing home abuse and neglect lawyers at Walton Barber LLP represent individuals and families throughout Southern California in cases involving nursing home abuse and neglect. All consultations about a case are free and confidential.

Nursing home residents have clearly defined rights when it comes to being transferred or discharged from a nursing facility, and may be evicted or moved under certain circumstances. Under California law, a nursing home may discharge or transfer a resident only if:

1. the resident's health has improved and is no longer need of skilled nursing services;
2. the resident's needs can no longer be met in the nursing home;
3. the health of individuals would be endangered;
4. the resident has failed, after reasonable notice, to pay; or
5. the nursing home ceases to operate.

Any discharge or transfer must be supported by adequate documentation, and the records must contain accurate assessments of the resident's condition. In addition, before any transfer or discharge can be made, the facility must provide written notice to the resident and, if known, a family member.

Unfortunately, nursing homes will frequently try to discharge (or "dump") residents they view as undesirable, for whatever reason. Any person who believes that they or someone they know has been the victim of a wrongful discharge or transfer may file complaint with the California Department of Public Health (Click here for contact information).

Walton Barber LLP represents individuals who have suffered abuse or neglect in the nursing home and assisted living setting. Cases are accepted in San Diego County, Riverside County, Orange County, San Bernardino County, and Los Angeles County.

A Laguna Hills nursing home faces its second lawsuit for elder abuse in three years for the neglect of one of its residents. In both cases the resident died.

Theresa Sperry died in July 2007 after a short stay a Villa Valencia skilled nursing facility. The lawsuit alleges that with two weeks of admission, Sperry developed pressure ulcers on both of her heels that were left untreated, and worsened to the point of spreading to her muscles and exposing bone. The complaint also alleges that Villa Valencia was not adequately staffed to care for its residents.

Pressure ulcers (also called decubitus ulcers or bed sores) are a big problem in nursing homes. The Orange County nursing home neglect lawyers at Walton Barber LLP have represented numerous nursing home residents who have developed very serious ulcers while under nursing home care. Most sores are a result of a combination of factors: poor nutrition, immobility, and neglectful treatment.

The Orange County nursing home lawsuit seeks unspecified damages.

A University of Chicago study reveals that approximately 13 percent of elderly Americans experience some sort of mistreatment. The most common form of abuse was verbal, experienced by 9 percent of elderly Americans, then financial mistreatment, experienced by 3.5 percent, and then physical abuse, reported by .2 percent of the elderly.

“The population of the country is aging, and people now live with chronic diseases longer. So it’s important to understand, from a health perspective, how people are being treated as they age,” said lead author Edward Laumann, the George Herbert Mead Distinguished Service Professor in Sociology at the University of Chicago.

The complete study can be accessed here.

Despite having the same odds at recovery, elderly trauma patients are being steered away from top trauma hospitals while younger patients are getting the better care. A new study finds emergency medical personnel are systematically discriminating against seniors. The study examined 10 years of data from ambulance trips in the state of Maryland and found that nearly half of all patients over 65 were not sent to designated trauma centers for care compared to only 18% of younger trauma victims.

Here’s the video story:

Walton Barber LLP represents people who have been vicimized by elder abuse, elder neglect, mistreatment, and nursing malpractice. Cases are accepted in the counties of San Diego, Los Angeles, Orange, Riverside, San Bernardino, Ventura, and Imperial.

Elder abuse lawyers have all seen cases of residents being evicted from nursing homes, or refused readmission, for dubious reasons. We sometimes call it Medi-Cal prejudice; that is residents being refused admission to a nursing home for no other reasons than they are Medi-Cal recipients.

One former client of our firm called a nearby nursing home hoping to find a room for her mother, who was about to be discharged from the hospital. The first question from the nursing home was whether her mother was receiving Medi-Cal. Medicare, or private pay. When the daughter told the nursing facility her mother received Medi-Cal, she was promptly told there were no available beds, but that her mother could be put on a waiting list.

Being a nurse herself and believing there were available beds, the daughter called the same facility the following day to see if there was room for her mother. Using a different name, she again asked if there were available beds, and this time, after informing the nursing home her mother received Medicare, she was told there were several rooms available, and that the facility would be happy to provide a tour that afternoon.

The Wall Street Journal reported this week that nursing homes across the country are refusing to admit, or are forcing out, frail and ill patients who are on Medicaid (“Medi-Cal” in California), because the facilities can make more money caring for residents on Medicare or private pay. Over the last decade, the number of complaints over the discharge practices of nursing homes has doubled, and the true number of force evictions is unknown, as it is believed most go unreported.

We are frequently asked how nursing home neglect or abuse can be prevented. There is no magic answer, but there are things one can do to lessen the odds that a loved one will be subject to physical neglect, financial abuse, or suffer the decline in health caused by poor care. The California Advocates for Nursing Home Reform have published a guide for preventing abuse in long-term care facilities. How does one increase the odds there will be no abuse or neglect?

1. Be very supportive of the transfer to a nursing home. Under most circumstances, the initial entrance to a nursing facility will engender feelings of loss or abandonment. Visit frequently to help with the adjustment.

2. Make the most of visits. Visit frequently, and at different times. Also visit during meal time. This will give you a more complete picture of care and the performance of staff.

3. Get to know the staff. Building personal relationships with the caregivers can be an excellent way to ensure good care.

4. Participate in care planning meeting. No one knows your family member better than you. The care plan meeting will give you an opportunity to alter the course of treatment to meet the needs of your loved one.

5. Be an advocate! Do not be afraid to advocate for the rights of your loved one. All residents have basic rights (click here) and you need to fight for them without fear of retaliation.

Don’t try to do this all alone. Enlist other family members and friends to help, and communicate often. Most nursing homes can provide good care; it’s just a matter of making it happen.

The law firm of Walton Barber LLP is based in Southern California, and represents individuals impacted by neglect and abuse in the nursing home and residential care setting. Cases are accepted in all Southern California counties.

Registered sex offenders, parolees, and individuals with violent pasts are living in nursing homes and assisted living facilities all over America according to the advocacy organization A Perfect Cause, which found 1,600 registered sex offenders in U.S. nursing facilities with senior citizens.

Wes Bledsoe, founder of the organizations, says that the group has documented over 60 rapes, murders, and assaults committed by criminal offenders inside these facilities. There is currently no federal or state law that keeps sexual offenders out of long term care facilities, and, in fact, many are sent to facilities by local judges, sheriffs, and county workers. Bledsoe is testifying before congress this week on the subject, and will call for the establishment of separate and secure nursing facilities for known sexual offenders, as well as a requirement of criminal background checks on all incoming residents.

"I hope that some of the congressional leaders don't sleep soundly tomorrow," said Bledsoe, "and that this makes an impression on them that right now, in this moment, we have people in harm's way."

Walton Barber attorney Randy Walton was a guest presenter last weekend at the annual meeting of the California Association of Long Term Care Medicine in Los Angeles. Walton and San Diego attorney Bill Wilson spoke to a group of approximately 150 physicians, nurses, and administrators about legal liability in the long-term care setting. The title of the presentation was Long-Term Care Liability Crisis: Risk Management Update and Mock Trial.

Elder abuse comes in a variety of forms. The abuse we hear about most frequently is physical abuse, which includes assault, battery, and sexual offenses, and financial abuse, which is usually a matter of fraud or undue influence upon a senior citizen. Both physical and financial abuse are very serous offenses that should be promptly reported to the police, and a private civil attorney.

Another, less discussed, form of abuse is abuse in the nursing home or assisted living setting. In California, there are approximately 100,000 nursing home beds, and probably an equal number of assisted living beds, and the health and well being inside these facilities usually depends on the quality of the care they are receiving. In truth, the word “abuse” is probably a bit misleading, as these occurrences are usually a matter of neglect of the elderly resident, not physical abuse.

Unfortunately, most instances of neglect or abuse are not reported. Elderly residents are often afraid to report an act of abuse or neglect for fear of retribution by staff, or simply because they cannot stand the thought of being transferred to a different facility. Or, more often, the decline in health caused by the neglect is attributed to some other cause, usually related to old age.

I typically tell people that if there is any unexpected injury, illness, or death, then it’s important to take a look at the records to determine the actual cause. Yes, people of advanced age usually have a variety of health problems, and most of the time illness or death is a naturally occurring event, and not the result of neglect or abuse. But if you, as the loved one, have a sense that something is not right, then I would suggest that an attorney with experience in nursing home abuse or neglect cases take a look at the person’s medical file.

The law firm of Walton Barber LLP represents seniors and dependent adults who are victims of neglect, abuse, mistreatment, and malpractice in the nursing home, assisted living, and residential care setting. Cases in all Southern California counties are accepted, including San Diego, Los Angeles, Orange, Riverside, San Bernardino, Ventura, and Imperial.

I recently attended a nursing conference where the central theme was elder abuse and neglect. One of the presenters was Charlene Harrington, Ph.D. of UCSF, a professor of nursing and sociology, who is considered an expert on nursing home staffing.

According to Harrington the nursing home staffing picture in California isn’t pretty. She said that there are over 12 million deficiencies in U.S. nursing homes annually, and stated that approximately one-quarter to one-third of all nursing homes provide substandard care.

According to Harrington, sufficient staffing is the number one indicator of the quality of care one can expect to receive in a nursing home. California requires that a licensed skill nursing facility provide at a minimum of 3.2 hours of nursing, per patient, per day. While this is a minimum standard, most California facilities view it as the threshold, striving only to meet it. In fact, RN care has been declining in California, which now has one of the lowest RN per patient, per day ratios in the country.

Harrington says those that view California’s 3.2 hours as more a ceiling than a floor are operating on dangerous footing, emphasizing that 3.2 hours is a minimum requirement. Adequate care for most facilities, she says, requires much more nursing, and believes the law should be changed to require 4.1 hours per patient, per day.

Ultimately, those facilities that provide more licensed nursing per patient, per day, tend to have fewer problems and a more satisfied patient population.

About four years ago I had a very interesting case involving the death of a developmentally disabled adult in a San Bernardino care facility. In my case, the thirty-year old severely disabled man was found barely breathing on the floor next to his bed just after midnight. Medics were called, and tried to sustain his life, but sadly the man died. Staff and the family presumed it was a heart attack, since the decedent was very obese and had a history of some heart problems.

An autopsy, however, showed a different case of death. The medical examiner ruled the death a homicide, finding that the man died from blunt force trauma to his abdomen. The next question for use was Who did it?

Through the discovery process in a lawsuit we filed against the facility, we believed the death was caused by either a disgruntled employee, who was tired and angry at the resident for the demands he made on staff time, or an autistic room mate (who could not speak), who accidentally kicked the decedent in an act of self-defense. The case settled before trial, so those questions were never fully answered.

Today, the Government Accountability Office issued a report that states should more thoroughly investigate the deaths of developmentally disabled people who are receiving community based care. The GAO found that the manner in which deaths were investigated varied widely from state to state, and many investigations were inadequate to determine if the deaths were the result of poor quality of care. To provide adequate safeguards, the GAO is instructing Medicare to put more pressure on states to investigate all deaths of DD individuals, regardless of the suspected cause. The complete report can be found here.

It's worth mentioning that California's elder abuse laws apply equally to "dependent adults" which is any individual between the age of 18 and 64 who is in some type of custodial care. Frequently that includes developmentally disabled adults.

Studies have suggested that approximately one-third of all nursing home residents suffer from some form of dehydration or malnutrition, a condition that can cause or aggravate more serious medical conditions, and may be caused by elder abuse or neglect.

Much of the problem can be attributed to poor staffing, whether inadequate numbers of staff, poor staff training, and a lack of individualized care. While California law requires 3.2 hours of certified nursing per patient, per day - a minimum number many nursing homes fail to meet - many experts believe the law is inadequate, advocating for an increase to 4.1 hours per resident, per day.

Karen Davis of the Commonwealth Fund, the funder of a report on nursing home care, says, “malnutrition, dehydration, and weight loss in nursing homes constitute one of the largest silent epidemics in this country."

Any signs or symptoms of malnutrition, dehydration, or sudden weight loss should be promptly reported to the director of nursing, and the resident’s regular physician. Any other questions can be directed to Walton Barber LLP, who would be happy to answer any questions or concerns about nursing home care.

The Robert Wood Johnson Foundation is donating millions of dollars to build small, home-like nursing homes as an alternative to the large institutional nursing homes we have come to know (and despise). Imagine what it would be like to have a country filled with nursing facilities like the one profiled in this video.

To read The Wall Street Journal article on the subject click here

A jury in Santa Ana awarded the family of Mary Adams $2 million after the 104-year-old was neglected in a Laguna Hills nursing home. The jury awarded $1 million for the Villa Valencia Health Care's negligence, and another $1 million in punitive damages.

Juror Rory Paster, a 41-year-old engineering analyst who lives in Huntington Beach, said the jury wanted to "send a message that the company should do a better job of treating patients."

According to reports, Adams admitted herself into the nursing home after suffering a fractured leg. Shortly after admission, Adams developed pressure sores on her heels, which were ignored, and not adequately treated. As a result, she contracted sepsis, and died about two months after her admission.

Attorneys for the family alleged neglect and wrongful death, including allegations that the facility’s owner, Sunrise Senior Living, purposely understaffed the facility in an effort to increase profits.

Nursing Home malpractice comes in many forms, and has many names. Some call it nursing home abuse or neglect, others elder abuse, but whatever the name, it’s increasingly becoming a problem in the United States. And it’s not just nursing homes. Residential facilities and home health care providers can commit malpractice as well.

Walton Barber LLP has represented victims of nursing home malpractice for more than a decade, and has learned that nursing home malpractice can come in many forms. The most common being simple neglect – the failure to notice a change in the resident’s condition, whether it be the occurrence of bed sores, the development of dehydration or malnutrition, or an obvious injury that is not promptly addressed. The law defines neglect simply as the failure to provide care for a person’s physical and mental needs, and to keep them free from health and safety hazards.

More serious cases are those of intentional conduct such as physical abuse, or the intentional mistreatment of a resident, often in retaliation for some prior act. Or the failure to provide basic care because of issues related to under staffing, such as cases involving multiple falls because staff would not respond to call lights. These cases can fairly be described not as just malpractice, but a conscious decision on the part of the nursing facility to expose residents to the risk of harm.

Ultimately, any unexpected injury, illness, infection, or death should be promptly investigated to determine if the underlying causes in nursing home malpractice, neglect, or abuse.

Walton Barber LLP represents individuals and families of victims of neglect and abuse in the nursing home setting. It accepts cases in the Southern California counties of San Diego, Los Angeles, Riverside, Orange, San Bernardino, Ventura, and Imperial.

Yesterday the Bush Administration announced that it will create a nursing home rating system by the end of the year. The criteria for ratings has not yet been established, but will likely be a combination of state and federal inspection reports, staffing reports, and resident and family satisfaction surveys. The ratings would be placed on a government website.

"The fact a home has a lower rating will likely put them on the path to improvement," said Kerry Weems, acting administrator for the Centers for Medicare and Medicaid Services. "I don't think we're going to see many people who are very anxious to put a loved one in a one-star home."

Those looking for information about California nursing homes already have a few options when looking at prospective homes. The California Advocates for Nursing Home Reform have a nursing home guide resource, and the California Healthcare Foundation has its own rating system. Both use the government surveys and staffing reports as a basis for the rankings, so the accuracy of the ratings is based primarily on the government's information, which can be notoriously unreliable.

As we have said in previous posts, the best way to choose a nursing home is to look at the government surveys, and to visit the home on more than one occasion and speak with current residents and their families.

The law firm of Walton Barber LLP represents victims of nursing home malpractice. It accepts cases in all Southern California counties, including Los Angeles, Orange, Riverside, San Diego, San Bernardino, Ventura, and Imperial.

A nursing home in Anaheim has received a $50,000 fine in the choking death of a resident. The resident, a brain injured man in his forties who had swallowing difficulty, choked on a piece of burrito.

According to reports, a caregiver was preparing the man's meal at Parkview Healthcare Center when he reached for the burrito and put it in his mouth. When he began choking, the Heimlich maneuver was attempted but failed. Caregivers were then instructed to begin CPR, but before doing so, looked in the resident's file to determine to see of there was a DNR (do not resuscitate) order. There was.

A doubtful nursing then called the man's sister, telling her "your bother is turning black, do you want him revived?" When the sister responded "yes." The DNR order was wrong. CPR was started. The man was pronounced dead approximately 30 minutes later. The fine was issued due to the nursing facility's failure to provide "prompt emergency medical care" as requested by the resident.

This was the second time in recent months that the Department of Public Health has fined an Orange County nursing home for a choking death. In April, Palm Terrace Healthcare in Laguna Hills received a fine of $75,000 after a patient drowsy from morphine was given meat and choked to death in her room.

The U.S. Department of Justice is stepping up efforts to reduce nursing home mistreatment of elders through its Nursing Home Iniative. The iniative focuses on improving enforcement of existing laws, training, attention to medical forensic issues, and increasing the use of reliable criminal background checks.

Through its Elder Justice program, the DOJ is also increasing the enforcement of civil and criminal penalties against nursing facilities and others whose mistreatment results in the serious injury or death of elderly residents. It has also created State Working Groups to improve the coordination of federal, state, and local law enforcement in cases of health care fraud.

For more information, visit the DOJ's website here.

The law firm of Walton Barber LLP represents victims of neglect, mistreatment, and malpractice in the nursing home and assisted living setting. It accepts cases in all Southern California counties, including Los Angeles, Orange, Riverside, San Diego, San Bernardino, Ventura, and Imperial.

The son of Maria Cobian, the elderly woman who was hit by a car and killed when she wandered away from her nursing home, has filed a wrongful death lawsuit in Vista Superior Court.

The lawsuit alleges that Palomar Heights Continuing Care Center in Escondido negligently failed to supervise Ms. Cobian, and to ensure the safety of 94-year-old resident, who also suffered from dementia. Ms. Cobian was only a few hundred yards away from the nursing facility when she walked into traffic and was struck by a car. The company of the car that hit Cobian was also named in the lawsuit.

Despite her alleged documented history of trying to leave the facility, and the nursing home's failure to prevent it, it doesn't appear that there are allegations of elder neglect under the Elder Abuse and Dependent Adult Civil Protection Act against the facility, which allows for enhanced damages against nursing homes, including pre-death pain and suffering, when certain burdens of proof are met.

Earlier this year, the California Department of Public Health issued a Class AA citation against the facility and fined it $100,000 for violations that caused Cobian's death. It was the second AA citation against this facility in two years. In 2006 a resident burned to death after being allowed to smoke next to his oxygen tank.

Nursing home abuse and neglect is not always perpetrated by staff members. New research from Cornell University suggests that aggression and violence between residents may be more prevalent than abuse or mistreatment from nursing home employees.

According to the study, peer-on-peer abuse is nursing home is a problem that has received little attention.

"Given that nursing homes are environments where people live close together, and many residents have lowered inhibitions because of dementia, such incidents are not surprising," said Karl Pillemer of Cornell. "Because of the nature of nursing home life, it is impossible to eliminate these abusive behaviors entirely, but we need better scientific evidence about what works to prevent this problem."

The Cornell research examined a large urban nursing home and found 35 different types of verbal and physical abuse between residents. The most commonly found aggressive behavior was screaming, followed by physical violence such as pushing, punching, or fighting. A related study found that 2.4 percent of the residents had personally experienced physically assault from another resident, and more than twice that had experienced verbal aggression.

The authors of the study hope that their findings will assist nursing home staff better manage aggressive behavior among residents.

Washington D.C.'s most powerful lobbyists are being hired by the nursing home industry to fight congressional efforts to reform the industry. The industry is closely watching bipartisan legislation that would significantly increase oversight and enforcement of nursing homes around the country.

The new legislation, recently introduced by Sens. Grassley (R) and Kohl (D), would require nursing homes to fully disclose their ownership structures, and would increase penalties if a patient is injured or dies due to negligent or neglectful care. The industry is expected to pay millions to fight this legislation.

Why would nursing home owners disapprove so strongly of a law that requires them to disclose who actually owns and runs the facilities that provide them such a great profit? Liability. Many owners have created maze-like ownership structures that makes it nearly impossible to find out who actually owns the facility when something goes wrong. It's not uncommon to have a one corporate entity own the building, who then leases it to a second company (the nursing home), who then contracts with a third company to operate it.

Unbeknown to most, however, is that all three corporate entities are run by the same individuals. And when things go bad, the entity most liable for poor care, usually the operator responsible for the day-to-day care, has nothing to offer the resident that was injured or killed because the it carries no insurance, has no assets, and makes no profit. In effect, the victim gets victimized twice.

This new legislation would make the ownership structure transparent, which some advocates say is not enough.

It is nice to know [who the actual owners are], but then what?” said Toby Edelman, senior policy attorney at the Center for Medicare Advocacy. “How do you get these people to be not only identified but accountable?”

The California Advocates for Nursing Home Reform has issued its 2007 Nursing Home Citation Report. CANHR has prepared a citation summary, including the name of the nursing facility, the date, the level of citation, and a brief summary of the facts that led up to the citation. There is also an instructional key to help readers understand how the individual nursing home citations summaries are displayed. The report, which is broken down by California counties, can be found here. (.pdf)

In summary, a total of 651 citations were issued against nursing homes in California by the Department of Public Health in the year 2007, 22 of which were Class AA citations (violations caused a death), and 122 were Class A (violations present imminent danger and a substantial probability of death).

Every skilled nursing facility (nursing home) in California is licensed by the California Department of Public Health (DPH). DPH, in turn, is charged with the responsibility of monitoring nursing homes in the state, which includes conducting annual inspections and investigating complaints of abuse or neglect.

Most complaints involve allegations of abuse or neglect of the nursing home resident, but any topic can be the subject of a complaint, including, but not limited to, poor staffing, unsafe conditions, mistreatment, transfer and discharge concerns, generally poor care, or a violation of patient rights. Once a complaint is made - and any person may make a complaint - the DPH will create a file and assign an investigator to the case. In most cases, the investigation is concluded within 90 days. For a list of local DPH offices click here.

If you have a complaint, it is usually a good idea to first address those concerns to the nursing facility itself, whether it is the administrator or the family council. If dissatisfied with the response, it is suggested to call the local ombudsman in your county for further advice. If a complaint involves serious allegations of abuse or neglect that has resulted in some injury, it probably a good idea to get the advice of an attorney with experience in nursing home abuse or neglect cases, such as the attorneys at Walton Barber LLP.

All complaints can be made orally or in writing.

A report from the Government Accountability Office states that widespread deficiencies addressing malnutrition, bedsores, medication errors, and abuse of nursing home residents are often understated.

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)

A jury in Arizona has awarded $6 million to the family of Sylvia Culpepper after the 81 year old died from an overdose of morphine in a nursing home. Culpepper, who was an active senior, was in the ManorCare nursing home only to recover from a back injury, and was expected to return home after her recovery.

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.

When entering a nursing home, residents or their family are usually presented with a stack of documents that address everything from the fees to be paid to the type of pillow the resident prefers. More than a dozen signatures can be required to complete the admissions process. Often buried within that stack is an arbitration provision, a binding contract wherein the resident agrees that any disputes over nursing home malpractice, negligence, neglect, or abuse will not be resolved in the courts, but via private arbitration. Private arbitration is simply a process where allegations of neglect or abuse are resolved by a private judge (frequently a lawyer) and not a jury.

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.

In California, approximately 200,000 claims of elder abuse are investigated every year by California social services. Because of proposed cuts to the California state budget, the ability to investigate claims of neglect or abuse could be reduced dramatically at a time when a greater portion of our population will be considered "elderly."

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.

Dehydration in the nursing home can lead to significant complications, including death. If the human body is deprived of necessary fluids, several symptoms may appear, including an increased heart rate, decreased sweating, decreased urination, extreme fatigue, headaches, cramps, and tingling of the limbs.

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.

Living in a nursing home or assisted living facility continues to get more and more expensive. For a fifth consecutive year, the average annual cost for a private room in a nursing facility rose to $76,460. The costs varied dramatically state by state.

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.

Since a significant part of my law practice involves cases of abused and neglected seniors in nursing home, I get asked frequently if I can recommend a good nursing home, or at least point out the bad ones. That is, of course, impossible because of the sheer number of nursing homes in California and the simple fact that every nursing facility, even ones with generally good reputations, have the potential for neglectful care.

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.

Last week President Bush signed into law the Safety of Seniors Act, a bill dedicated to preventing injuries of the elderly inside the home. According to the CDC, one in every three Americans over 65 will suffer a fall their home, and nearly a third of those will require medical treatment. In addition, 80% of elderly Americans who suffer a serious fall will suffer an additional fall within a year.

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.

A nursing home in Riverside County was hit with a $100,000 fine after the state deemed the death of an 87-year-old woman, who died of acute peritonitis in June 2006, was due to neglect. The home was also issued a AA citation from the California Department of Public Health, the most severe citation that can be given to a nursing home.

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.

Studies show that almost 50% of California nursing homes do not meet federal standards in preventing pressure ulcers. The problems are so widespread that the treatment of these ulcers – also called bed sores - will no longer be covered by Medicare if the sore was acquired after admission into a nursing home.

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.

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.

The quality of care provided by California nursing homes has declined by almost every measure since the implementation of a new Medi-Cal rate system that increased funding the nursing facilities according to a new study by the University of California, San Francisco (UCSF). Meanwhile, nursing home complaints and the issuance of deficiencies have grown dramatically since the rate hike.

Critics contend that the nursing home industry crafted the rate hike on the basis that it was necessary to improve care. And while staffing levels improved under the new law, nursing home staff turnovers increased. The study reveals that 144 nursing homes in California failed to meet state minimum staffing requirements (.pdf).

According to the California Advocates for Nursing Home Reform:

The rate system's most controversial provision is a profit component that pays nursing homes 8 percent of their labor costs to spend or pocket as they wish. Estimated to cost Medi-Cal and taxpayers about $150 million per year, it is deceptively labeled as a "labor driven operating allocation." Every freestanding skilled nursing facility certified by Medi-Cal receives profit payments, no matter how poor its care. No other Medi-Cal providers are guaranteed a profit.

The entire UCSF study can be found here (.pdf). If you have any questions about nursing home quality of care, call Walton Barber LLP at (866) 607-1325.

The signs and symptoms of a brain injury are not always as clear as you might think. Most patients who suffer a traumatic brain injury can walk, talk, and give the appearance of a normally functioning person. There are, however, symptoms that point to brain trauma.

The month of March is set aside to increase the awareness of traumatic brain injuries, which can be caused by a bump, blow, or jolt to the head. The Centers for Disease Control and Prevention reports that falls - particularly in people over age 75 - are the leading cause of brain injuries in the United States.

Those who care for the elderly should be aware of the symptoms of a brain injury. In a mild injury, a person might have a persistent headache, confused, or have blurred vision. Another symptoms is a lost of smell or taste. A more severe injury may cause vomiting, slurred speech or weakness in arms or legs.

In the elderly, the best way to prevent injury is to prevent falls. One way to prevent falls is to remove items in the home that can be a trip hazard such as small rugs or electric cords. Another way is to be aware of any medications that might increase dizziness or weakness, and to make sure that any vision problems are addressed.

For more information about preventing falls visit the CDC website.

Those of us who sue nursing homes and assisted living facilities for elder abuse and neglect of residents know how hard it is to uncover the evidence needed to meet our burdens of proof (which are higher than the typical case). Whether it's proving a systemic problem of understaffing, ignoring resident fall risks, or establishing false charting, the victims of abuse or neglect always face tremendous hurdles in proving they were neglected. In reality, it's usually the family trying to prove the wrongdoing since the victim is frequently dead because of the abuse or neglect.

What we certainly don't need is nursing home caregivers, through their union representatives, colluding with industry trade groups to lobby against the rights of nursing home residents all in the name of job security and wages. This disturbing article in the San Francisco Weekly suggests that for the Service Employees International Union this might be a goal.

According to the article, the two-million-member SEIU, the country's largest union, would offer political support for nursing home industry goals of limiting patients’ or families' right to sue for abuse and neglect in exchange for the right to organize nursing home employees in a number of California nursing facilities. This collaboration has led to a division within union ranks, and a growing dispute between SEIU's California healthcare affiliate and the national union office.

Whatever the outcome of this dispute, California nursing home abuse laws should not be weakened, and unionized caregivers should not be encouraged to overlook or ignore cases of neglect because of some real or perceived partnership with the nursing home industry. If anything, action should be taken to strengthen the rights of the elderly and dependent adults who find themselves in a nursing home, and whose very survival depends on the competency and commitment of those who provide daily care.

When there is sustained pressure in an area of skin that cuts off circulation to that area, the skin will start to breakdown creating what is common called a bedsore or pressure ulcer. If you've never seen one, consider yourself lucky. Not properly cared for, these sores and develop into wounds so deep that muscle and bone can sometimes be exposed.

It has been reported that two million Americans experienced pressure ulcers every year, usually the result of a combination of poor nutrition, dehydration, and immobility. Recent studies, however, suggest that fighting bedsores requires a team approach, enlisting not just the bedside caregivers, but many other nursing home employees.

A study by the Journal of the American Geriatrics Society involving 52 nursing homes around the United States reported a reduction of almost 70% of serious bedsores acquired in the facilities after utilizing a team approach to the prevention and treatment of sores.

“Preventing pressure ulcers is a 24/7/365 kind of job,” said Jeff West, a clinical reviewer at Qualis Health in Seattle, who helped to set up the collaborative in 2003. “It’s not as if one person can get it all done. And if it fails just a little bit, just during the weekends, for instance, you’re not going to get the results. It takes tremendous consistency.”

For example, laundry workers can help make sure clothes fit properly, kitchen staff can ensure proper nutrition, even the beauty parlor can help by assessing the risk of the customer and making sure a resident doesn't sit on one place for too long.

Bedsores should be rare events in nursing homes. While the development of these sores can not always be blamed on inadequate care, it is rarely the case that a State III or IV pressure ulcer could not have been prevented with proper attention and care.

Medicaid spends more money on antipsychotic drugs than any other prescription drug. Physicians are prescribing these powerful drugs in record numbers to nursing home residents in order to control their behavior, not for the treatment of psychotic illness.

It is reported that nearly 30% of the total nursing home population is receiving medication in a practice that is known as "off label use" of prescription drugs. It's no surprise to lawyers who practice this area that studies also reveal that nearly 21% of nursing facility residents being given these drugs do not have a psychosis diagnosis.

"You walk into facilities where you see residents slumped over in their wheelchairs, their heads are hanging, and they're out of it, and that is unacceptable," says Christie Teigland, director of informatics research for the New York Association of Homes and Services for the Aging, a not-for-profit industry group. Her research, which she believes reflects national trends, shows that about one-third of dementia patients in New York's nursing homes are on antipsychotics; some facilities have rates as high as 60% to 70%. "These drugs are being given way too much to this frail elderly population," Dr. Teigland says.

Here at Walton Barber we frequently get calls from families angry at nursing providers for over-medicating loved ones. It's usually a similar story. The family stops by the facility for a visit, only to find their loved one non-communicative and listless, and sometimes incontinent.

The Centers for Medicare & Medicaid -- the federal agency that oversees the two huge tax-funded insurance programs that cover the elderly and the poor -- has "initiated a more rigorous process to oversee appropriate use of medicine," says Chief Medical Officer Barry Straube. He says the number of nursing home inspections that result in citations for violating drug-misuse rules has jumped by nearly 50% between 2004 and this year. Action is being taken and the increased vigilance is working, CMS says.

Dr. Straube says CMS -- which both funds and oversees nursing homes -- "is very concerned about the quality of care in nursing homes and has taken steps within its authority to discourage inappropriate use of all drugs, including psychotropic medications."

High use of antipsychotics in a nursing home can be an indicator of inadequate staffing or other negligent care, says Bruce Pollock, president-elect of the American Association of Geriatric Psychiatry. "We know the more staffing there is and the higher quality of care, the less the antipsychotic usage," he says.

If you have concerns that someone you know is being over-medicated contact the resident's primary physician immediately.

Nursing home owners have claimed for years that they are barely getting by, and the lawsuits against them for negligent care are going to drive them out of business, leaving no place to put seniors. We reject this argument as a time-honored trick by tortfeasors to become the victims after causing harm to others. A New York Times article substantiated that the nursing home business is plenty profitable.

According to the Times, private takeover of nursing homes leads to poorer care, and increases the likelihood of nursing home abuse or neglect. A survey of complaints against more than 16,000 U.S. nursing homes found that care often deteriorates significantly after homes are acquired by large private investment firms.

The Times compared the number of complaints received against 1,200 nursing homes acquired by these for-profit firms against those of 14,000 other nursing homes.

The report revealed that, on average, residents of these homes are now much worse off in terms of depression, loss of mobility, and loss of ability to dress and bathe themselves than before the takeover, according to data compiled by the U.S. Centers for Medicare and Medicaid Services. Much of that shortfall in care is linked to drastic cuts in nursing and other staff in the months after an investment firm takes over the home.

“The first thing owners do is lay off nurses and other staff that are essential to keeping patients safe,” said Charlene Harrington, a professor at the University of California in San Francisco who studies nursing homes. In her opinion, she added, “chains have made a lot of money by cutting nurses, but it’s at the cost of human lives.”

Advocates for nursing home reforms say anyone who profits from a facility should be held accountable for its care.

“Private equity is buying up this industry and then hiding the assets,” said Toby S. Edelman, a nursing home expert with the Center for Medicare Advocacy, a nonprofit group that counsels people on Medicare. “And now residents are dying, and there is little the courts or regulators can do.”

There is something you can do. Go after those who cause the harm, plain and simple.

The National Pressure Advisory Panel updated its definition of the four “stages” used to diagnose pressure ulcers or decubitus ulcers (often referred to as bed sores). It also added two new stages on deep-tissue injury and ulcers that cannot be staged. The updated stages of pressure ulcers were released at the conclusion of its 2007 annual conference held in San Antonio, Texas.

A pressure ulcer or bed sore is a localized injury to the skin and/or underlying tissue, usually over a bony prominence as a result of pressure, or pressure in combination with shear and/or friction. In elderly or disabled patients, sores can begin on the skin of the tailbone, back, buttocks, heels, back of the head, or elbows. Poor nutrition or dehydration can weaken the skin and make it more vulnerable.

The new staging definitions are as follows:

Stage I. Intact skin with non-blanchable redness of a localized area usually over a bony prominence. Darkly pigmented skin may not have visible blanching; its color may differ from the surrounding area.

Stage II. Partial thickness loss of dermis presenting as a shallow open ulcer with a red pink wound bed, without slough. May also present as an intact or open/ruptured serum-filled blister.

Stage III. Full thickness tissue loss. Subcutaneous fat may be visible but bone, tendon or muscle is not exposed. Slough may be present but does not obscure the depth of tissue loss. May include undermining and tunneling.

Stage IV. Full thickness tissue loss with exposed bone, tendon or muscle. Slough or eschar may be present on some parts of the wound bed. Often include undermining and tunneling.

Unstageable. Full thickness tissue loss in which the base of the ulcer is covered by slough (yellow, tan, gray, green or brown) and/or eschar (tan, brown or black) in the wound bed.

There is rarely a legitimate explanation for a pressure ulcer to reach the level of a Stage IV in hospital, nursing home, or assisted living setting. Any skin wound progressing to Stages III or IV should be viewed with a critical eye, and a physician should be involved in the care immediately. The development of pressure ulcers in the custodial care setting is one of the leading causes of lawsuits against nursing homes in the United States, and have been the subject of several lawsuits brought by the attorneys at Walton Barber.

The Centers for Medicare and Medicaid Services announced last month that, it will no longer reimburse hospitals for treating eight "reasonably preventable" conditions as of October 2008 the Wall Street Journal reports. Pressure ulcers are among the most prevalent, costly and dangerous on the list. In addition to interfering with recovery, lengthening hospital stays and causing extreme pain and discomfort, pressure ulcers can increase the risk of infection, with nearly 60,000 deaths annually from hospital-acquired pressure ulcers.

Nursing homes and long-term-care facilities have made strides of their own in prevention, motivated in part by the costs of lawsuits for failure to prevent bed sores. Prevention methods can include using ultrasound to identify skin breakdown before a pressure sore forms, special pressure reducing mattresses and ensuring that residents are turned at least every two hours.

Despite the availability of these, and other, prevention techniques, nursing homes have long failed to do much to prevent pressure ulcers as they had no real incentive to do so (other than the fear of lawsuits). Most commonly, nursing homes save money by not having enough staff on hand to ensure that residents receive the treatments required. They are then “rewarded” for this behavior by Medicare paying them extra money per patient to treat the decubitus ulcers. As of October of 2008, nursing homes will instead have to “pay” to treat pressure ulcers which they cause. Hopefully this disincentive will result in better care for all nursing home residents.

The federal Older Americans Act provides funding to states to fulfill the goals of the Act, namely the protection of the vulnerable elderly population. To receive federal funds, states must comply with a variety of statutory requirements, including the formation of an office of the State Long-Term Care Ombudsman.

Under federal law, the designated state ombudsman may designate a local ombudsman office to provide services to protect the health, safety, and welfare of long-term care residents. It is the job of the local ombudsman to “identify, investigate, and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents.” (42 U.S.C. §3058g(a)(5)(B)(iii).)

Generally, any concerns about resident rights issues, physical abuse or neglect, transfer and discharge issues, or any other unexpected injury, illness, infection or death should be reported to your local ombudsman office. Reports of elder abuse or neglect are confidential, and will not be revealed in any legal actions that might arise from the complaints.

Remember, residents have rights, including the right to be treated with respect and dignity, the right to be free from chemical and physical restraint, and the right to voice grievances without fear of retaliation.

People with questions about nursing home elder abuse or neglect, or who desire more information about the complaint process, should contact Walton Barber at (760) 607-1325. All consultations are free and confidential.

The Nursing Home Complaint Investigation Improvement Act (AB 399), authored was approved last week in the Assembly Health Committee by a vote of 10-0. The legislation would fight abuse and neglect by improving the quality and timeliness of nursing home complaint investigations. AB 399 has over 30 registered supporters including the AARP, Congress of California Seniors, Gray Panthers, and Bet Tzedek Legal Services. There is no registered opposition.

According to the California Chronicle, AB 399 would require the Department of Health Services (DHS) to complete investigations within 40 working days; send complainants a written summary of findings about their complaint; investigate facility-reported complaints of abuse and neglect within the same time frames as public complaints; and extend the number of days a complainant has to seek an informal conference from five business days to 15 days after receipt of the determination.

"Today's vote is an important step toward restoring public confidence in California's nursing home oversight system," said Michael Connors of California Advocates for Nursing Home Reform (CANHR). "Timely DHS investigations will help ensure that nursing home residents are protected from further neglect and abuse once it's been reported."

Supporters of the law are urged to write Governor Schwarzenegger as soon as possible and urge him to sign AB 399 into law.

The California Advocates for Nursing Home Reform (CANHR) in San Francisco has been fighting for the rights of long-term nursing home residents for more than 20 years. Through community education, legislation and litigation, it has been CANHR's goal to remind decision makers of what needs to be done about long-term care; that this "forgotten population" consists of our mothers and fathers, our husbands and wives, our brothers and sisters, and that their suffering is our shame. CANHR has received numerous awards for its work.

Walton Barber is proud to support the work of CANHR, and is now participating in its 2007 Campaign for Justice, an effort to continue the great work of this valuable organization. If you are interested in providing your support to the cause, and helping to give a voice to the voiceless, please visit our contribution site and contribute. Any contribution you can make will be appreciated.

Thank you.

Randy / Scott / Kim

A couple who operated a New Orleans area nursing home was acquitted of 35 negligent homicide charges and 24 counts of cruelty. Jurors believed the couple's mistake of staying in the nursing home during Hurricane Katrina should not be singled out and defense attorneys argued it was the government that did not do their job.

Providing nutritional support through feeding tubes to patients who are unable to eat enough orally to sustain themselves is an important component of supportive nursing care. Feeding tubes that enter the stomach through the abdominal wall, or percutaneous gastrostomy tubes (PEG tubes), can cause serious injury or death if misplaced or become dislodged. Nursing standards require that caregivers check the proper placement before using the tube for any purpose, whether it is for nutritional support, medication administration, or hydration. Failure to do so can expose the nurse and the nursing facility to legal liability.

Walton Barber currently represents two nursing home residents who were provided tube feedings after the tube was misplaced or became dislodged, causing tube feeding material to spill into the peritoneal space. Both patients became immediately septic, and one, a 73-year-old man, died.

Peer abuse in nursing homes is becoming more prevalent as the number of residents suffering from dementia or Alzheimer’s disease increases. Nursing facilities that accept individuals with dementia or Alzheimer's or any other psychological disorders have a duty to properly evaluate each resident and plan for the care of that resident in a manner that protects the resident, the staff, and all other residents of the facility. Failure to do so may expose the nursing home to legal liability. Walton Barber currently represents the family of a San Bernardino man who died shortly after being attacked in a nursing facility by a fellow resident.

Several recent news stories, including an article in Newsweek, highlight the growing problem of peer abuse in nursing homes. (Click link to see MSNBC's article: Nursing-Home Residents at risk For Peer Abuse)

An Alzheimer's patient was strangled by her bedrail while residing at an assisted living facility. She slid off her bed, became trapped between the mattress and the bed rail, and died from positional asphyxia. Bed rails, often used to prevent injuries, can be deadly if not used properly and under the right circumstances. Currently there are many defective bedrails on the market whose dimensions do not meet the current FDA recommendations. Walton Barber represents the family of the 90-year-old woman who is pursuing a claim against the residential care facility for the improper use of bed rails, and against the manufacturer and distributor for producing and supplying defective bedrails.

A skilled nursing facility placed an elderly resident in a room without air conditioning during last summer's heat wave. The resident died within 24 hours of admission. Walton Barber filed a lawsuit against the nursing home for failure to provide adequate care and accommodations.

An elderly woman developed a large bed sore while residing in a residential care facility. Because of inadequate treatment, the skin wound worsened and the elderly resident died only 10 days after being sent to a hospital for proper wound care. Walton Barber represents the woman's family in prosecuting the assisted living facility for failure to provide adequate wound care and treatment.

A severe hip fracture suffered by a resident of an assisted living facility went undiagnosed by facility staff for two weeks. The resident, who was ambulatory before the hip fracture, died approximately three weeks after being hospitalized for her injury. Mr. Walton filed a lawsuit against the residential care facility for failure to recognize the fracture.

Attorneys Randy Walton and Scott Barber form Walton Barber LLP to join forces in the prosecution of nursing homes and residential facilities for the abuse or neglect of residents. Walton Barber LLP will represent individuals all over Southern California who have experienced nursing home elder abuse or neglect, including against San Diego nursing homes, Los Angeles nursing homes, Orange County nursing homes, Riverside nursing homes, and San Bernardino nursing homes.