July 2009 Archives

Nursing homes are usually owned and operated by for-profit corporate entities controlled by extremely sophisticated investors.  Recently, there has been a trend whereby private equity firms have purchased nursing home chains with the goal of achieving large profits through cost cutting measures including reduction of staff and expenses. 
 
In this regard, teams of corporate and transactional attorneys are retained in order to reduce litigation costs and payouts in nursing home neglect cases through the use of complex layers of corporate shells making it very difficult to identify the correct entity that is legally responsible for paying out a claim.  As reported by the New York Times in a September 23, 2007 article entitled "At Many Homes, More Profit and Less Nursing":
 
Private investment companies have made it very difficult for plaintiffs to succeed in court and for regulators to levy chainwide fees by creating complex corporate structures that obscure who controls the nursing home.
 
(Emphasis added).
 
In our experience litigating nursing home negligence/wrongful death cases, we have encountered many situations where nursing homes have set up numerous layers of corporate entities/corporate shells making it extremely difficult to zero in on the correct corporate entities that must be included as defendants.  This can be especially problematic in cases that are approaching expiration of the statute of limitations because new corporate entities cannot be added to the case after the limitations has expired.
 
Our firm therefore takes careful steps in every case to ensure that the correct and necessary corporate entities are included as defendants.  Oftentimes, this requires early depositions of the nursing home corporate directors and the review of voluminous records and documents. 
 
In addition to these measures, in our Maryland nursing home neglect cases, we contact the Maryland Department of Health and Mental Hygiene, Office of Health Care Quality in order to obtain a copy of the license issued by the State, as well as other helpful information.  The Maryland Office of Health Care Quality is the state agency within the Department of Health and Mental Hygiene charged with monitoring the quality care in Maryland's 8,000 health care facilities and residential programs. 
 
As a general rule, the corporate entity that has been granted the state license must be included as a defendant in the case.  These licenses are public information and can be obtain by contacting:
 
Maryland Department of Health and Mental Hygiene
Office of Health Care Quality
Spring Grove Medical Center
Bland Bryant Building
55 Wade Avenue
Catonsville, Maryland 21228
(410) 402-8000
(877) 402-8218 (toll-free)
 
Please feel free to contact the lawyers at Dever & Feldstein, LLC at (888) 825-9119 for a free consultation if you believe that a family member or loved one has sustained serious injury as a result of bedsores (also known as pressure sores or decubitus ulcers), dehydration, falls or elderly abuse or neglect. 
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Elderly nursing home residents are often at risk of developing bedsores (also known as pressure ulcers or decubitus ulcers) as a result of their underlying health problems and immobility issues.  A pressure ulcer/decubitis ulcer is a bedsore that comes from lying or sitting in the same position too long and is associated with pain.  These bedsores are generally avoidable so long as the nursing home: (1) provides proper preventative care (including turning, or repositioning, residents); and (2) develops, implements and (when necessary) updates a comprehensive care plan to prevent pressure ulcers from occurring and to prevent pressure sores from deteriorating.
 
In our experience, all too often the nursing home staff blindly follow the nursing home's  pre-printed medical forms when it comes to turning or repositioning residents.  The mentality seems to be that as long as the boxes on the pre-printed medical form are checked indicating the resident was turned or repositioned every two hours, the nursing home has satisfied their responsibilities to the resident.
 
In this regard, one trap that nursing homes fall into involves residents who are placed in geri-chairs.  Geri-chairs are a type of seating device that serve as a wheelchair and recliner.  It is not uncommon for nursing home residents to be placed in geri-chairs for long time periods and residents are often allowed to nap in these chairs for hours at a time.
 
Geri-chairs create even more pressure to a patient's buttocks area than the resident would experience if he or she was lying down, preventing the blood from flowing into those points.  Because the blood is not allowed to flow into those points, the skin, deprived of nutrients and oxygen, can become injured and susceptible to infection.  Pressure is a primary contributing factor to the development of pressure ulcers.  Pressure must be relieved by turning or repositioning the resident.
 
For these reasons, the federal government has developed federal regulations/clinical practice guidelines requiring that residents placed in geri-chairs be repositioned at least every hour.  The relevant regulation provides:
 
Any person at risk for developing a pressure ulcer should avoid uninterrupted sitting in a chair or wheelchair.  The individual should be repositioned, shifting the points under pressure at least every hour or be put back to bed consistent with overall patient management goals. 
 
(Emphasis added).
 
In our cases, we have encountered nursing homes that do not even have policies, procedures or guidelines for repositioning or turning residents in geri-chairs.  Oftentimes, the nursing home staff and medical director are not even aware of: (1) the increased pressure risk posed by geri-chairs; (2) or the above-referenced federal regulation requiring residents in geri-chairs to be repositioned at least every hour. 
 
Sadly, once a bedsore/pressure sore/decubitis ulcer develops, it can be difficult to reverse, become infected and quickly progress to a stage 3 or stage 4 decubitus ulcer.  A stage three ulcer involves full-thickness skin loss and damage or necrosis of subcutaneous tissue that may extend to, but not through, the underlying fascia.  The ulcer appears as a crater, with or without undermining of adjacent tissue.  A stage four ulcer involves full-thickness skin loss with extensive destruction, tissue necrosis, or damage to muscle, bone, or supporting structures (e.g., a tendon or a joint capsule).
 
With stage 3 or 4 pressure ulcers, the extent of the disease may not be evident because of covering necrotic material.  To establish the extent of the disease and promote healing, the necrotic material needs to be removed and surgical consultation may be required.  When ulcers develop over bony prominences, osteomyelitis is a potential complication.  Pressure ulcers are chronically contaminated wounds and the combination of bacteremia and pressure sores can result in sepsis and death.   
 
The good news is that pressure ulcers are entirely avoidable so long as proper care and preventative measures are instituted and implemented by the nursing home.  Under new Medicare guidelines, hospitals are no longer reimbursed for additional care resulting from bed sores and several other "reasonably preventable" errors. The government has determined that development of bedsores is a so-called "never event."
 
Please feel free to contact the lawyers at Dever & Feldstein, LLC at (888) 825-9119 for a free consultation if you believe that a family member or loved one has sustained serious injury as a result of bedsores/pressure sores/decubitus ulcers or elderly abuse or neglect. 
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It is common knowledge that water is essential for human life. 
 
Nursing home residents are often at risk for dehydration.  Simply stated, dehydration occurs when a person loses more water than they take in.   Water deprivation can have serious life threatening consequences.  Sadly, in our experience, nursing homes all too often fail to take appropriate measures to prevent this most treatable and preventable condition.
 
There are many reasons that dehydration occurs frequently in elderly people including physiological changes in the body resulting in loss of protein which holds water, decrease of kidney urine concentrating abilities resulting in frequent urination, and decreasing thirst.  Additionally, many medications, including blood pressure medication, anti-depressants and laxatives, cause dehydration.  Making matters worse, many elderly nursing home residents are totally dependent upon the nursing home staff to obtain adequate fluid intake as a result of cognitive and physical disabilities.    
 
Most physicians would agree that the minimal standard of care for residents in nursing homes requires the nursing home staff to provide each resident with sufficient fluid intake to maintain proper hydration and health.  Nursing homes should develop, implement and (when needed) revise care plans to protect residents from fluid volume deficits.  The potentially fatal consequences of dehydration can be prevented if the nursing home staff takes preventative actions including recording daily food and fluid intake, monitoring body weight on a daily basis and implementing a hydration program that provides water during and between meals.  The nursing home must carefully and thoroughly monitor fluid and nutritional support and initiate appropriate treatment when intake falls below adequate levels.
 
Unfortunately, elderly dehydration often goes undiagnosed and untreated in nursing home patients.  Fluid volume deficits can have devastating consequences such as causing kidney failure, seizures, swelling of the brain, hypovolemic shock, and increases a resident's susceptibility to urinary tract infections in females.  Ultimately, dehydrated nursing home residents may develop sepsis resulting in death because their ability to fight infections has been compromised.    
 
In recognition of the importance of preventing dehydration, the Health Care Financing Administration (also known as the Centers for Medicare & Medicaid Services) has classified dehydration as a "sentinel event" that can trigger a broader investigation of a nursing home by state surveyors.  The development of pressure sores (also known as bed sores or decubitus ulcers) is also classified as a "sentinel event." 
 
Please feel free to contact the lawyers at Dever & Feldstein, LLC at (888) 825-9119 for a free consultation if you believe that a family member or loved one has sustained serious injury as a result of dehydration, urinary tract infection or elderly abuse or neglect
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Family members who are unhappy with care and treatment provided at nursing homes in Maryland should consider making a complaint with the Maryland Office of Health Care Quality/ Department of Health and Mental Hygiene.  To make a complaint, call the Maryland Office of Health Care Quality at (410) 402-8000.
 
The State's nursing home inspection results are considered public information and can be obtained from the Maryland Office of Health Care Quality.  Requests for such results should be forwarded to:
 
Office of Health Care Quality
Spring Grove Hospital Center
Bland Bryant Building
55 Wade Avenue
Catonsville, Maryland 21228
Attn: Public Information Request
(410) 402-8000
 
Please feel free to contact the lawyers at Dever & Feldstein, LLC at (888) 825-9119 for a free consultation if you believe that a family member or loved one has sustained serious injury as a result of substandard nursing home care in the State of Maryland. 
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As the saying goes, a picture is worth a thousand words.
 
This can be especially relevant in nursing home negligence cases involving bed sores/pressure sores/decubitus ulcers.  Graphic photographs of these wounds are powerful evidence, and nursing home defendants and their attorneys will factor such photographs into their evaluation of claims.
 
Nursing home residents who have developed bed sores may receive treatment at wound clinics.  As part of their treatment, some wound clinics take photographs of the condition although the existence of such photographs may not be mentioned in the medical records.  Our firm routinely sends specific requests for the production of photographs to wound clinics and have been able to uncover the existence of helpful evidence. 
 
Families should not assume that such photographs will be available through discovery in litigation.  If a family member has developed wounds/pressure sores/decubitus ulcers, it is advisable to take photographs of the condition and to be able to state the date and location of the photographs.

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In our cases, defense counsel regularly attempts to argue that the nursing home patient who is unable to communicate their pain complaints directly to the nursing home staff cannot make a claim for conscious pain and suffering as a result of their pressure sore/decubitus ulcer.  The inability to recover for this category of damages could significantly affect the awardable recovery under Maryland's Medical Malpractice Noneconomic Damages Cap.
 
Under Maryland law, the evidence necessary to demonstrate conscious pain and suffering will generally require expert testimony.  See Ory v. Libersky, 40 Md. App. 151, 162 (1978).  The Maryland Court of Special Appeals recently held that Plaintiffs are required to produce evidence from which a reasonable inference could be drawn that the injured party experienced conscious pain and suffering.  Freed v. D.R.D. Pool Service, Inc., (slip opinion filed on July 6, 2009).  Importantly, the Freed court appears to have rejected the requirement that the Plaintiffs produce direct evidence of conscious pain and suffering.  It should be noted, however, this opinion from Maryland's intermediary appellate court is potentially subject to further review by the Maryland Court of Appeals, the state's highest court.
 
The medical records oftentimes are silent as to information regarding pain secondary to wounds.  It is therefore necessary to make sure that these issues are discussed early on with the family members in order to determine if anyone witnessed the Plaintiff demonstrating signs of pain when he or she was receiving wound care or being repositioned.  Such eyewitness testimony provided by family members can be considered by the medical experts in support of an opinion regarding conscious pain and suffering.
 
The lesson to be learned is to make this analysis part of your checklist of issues to discuss with families when screening and litigating pressure sore/decubitus ulcer cases.  If you wait until the expert's deposition to evaluate this issue and lay the proper foundation, it may be too late.   
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