Elder Abuse and Neglect in Nursing Homes
There is an increasing trend is towards providing care in a home like environment whenever possible. There is a wide spectrum of housing for elderly and disabled persons with an increasing number of campus models where people can remain as independent as possible and as their medical needs increase they can have increasing medical supervision and attention without leaving the community. Many cases of elder neglect are the result of misplacement of an individual who has higher care or supervision needs than the provider is able to offer. Despite the trend for people who need long term care to get that care in their communities, there will always be a need for nursing homes for those who need or want to be cared for in a facility setting that is capable of providing professional services 24 hours a day.
More Elder Abuse and Neglect Information
In fact, the demand for nursing home services will likely continue to increase with the aging of the baby-boomer generation. The population of persons over the age of 85 has increased significantly, and population projections by the US Census Bureau anticipate the over age 65 population to increase by 40% between 2010 and 2030. Projections indicate that the percentage of people in need of nursing home care will increase by up to 25% in the coming decades. According to the best available estimates, between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection. Estimates of the frequency of elder abuse range from 2% to 10% based on various sampling, survey methods, and case definitions.
It is estimated that for every one case of elder abuse, neglect, exploitation, or self-neglect reported to authorities, about five more go unreported. Nursing homes are at the higher needs end of the spectrum and are often the focus of elder neglect due to the number of residents and the increased complexity of the their care needs. Many of the cases of nursing home neglect would be preventable with adequate numbers of well trained staff. It is important to hold nursing homes that fail to properly administrate the facility to maximize the quality of care for the residents, accountable. The goal is to create an opportunity for the facility to analyze the cause of incidents and make affirmative steps towards improvement while ensuring a financial basis for compliance.
Under the federal regulations, the nursing home must:
- Have sufficient competent nursing staff. (42 CFR §483.30, Minn. Rules 4658.0105 and 4658.0510)
- Conduct initially a comprehensive and accurate assessment of each resident’s functional capacity. (42 CFR §483.20)
- Develop a comprehensive care plan for each resident. (42 CFR §483.20)
- Prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to communicate. (42 CFR §483.25)
- Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal oral hygiene. (42 CFR §483.25)
- Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities. (42 CFR §483.25)
- Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. (42 CFR §483.25)
- Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. (42 CFR §483.25)
- Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. (42 CFR §483.25)
- Maintain acceptable parameters of nutritional status. (42 CFR §483.25)
- Provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR §483.25)
- Ensure that residents are free of any significant medication errors. (42 CFR §483.25)
- Promote each resident’s quality of life. (42 CFR §483.15)
- Maintain dignity and respect of each resident. (42 CFR §483.15)
- Ensure that the resident has the right to choose activities, schedules, and health care. (42 CFR §483.40)
- Provide pharmaceutical services to meet the needs of each resident. (42 CFR §483.60)
- Be administered in a manner that enables it [the nursing home] to use its resources effectively and efficiently. (42 CFR §483.75)
- Maintain accurate, complete, and easily accessible clinical records on each resident. (42 CFR §483.75)
Signs of Nursing Home Abuse and Neglect
There are a number of different warning signs that could suggest that a nursing home is not providing adequate health care. In many cases, these warning signs will go unnoticed. Physical signs can often be a great indicator of abuse. If a resident is showing any of these symptoms, it could be a sign of neglect or abuse:
- Bed sores/ pressure sores
- Torn clothing or personal items
- Constant falls and traumas
- Excessive weight loss or weight gain
- Fecal/urine smells
- Pale complexion
- Lack of personal hygiene
- Presence of dirt, lice, fleas, etc.
- A change in personality
Signs of Nursing Home Neglect or Inadequate Care
- There are a number of cases where the neglect or abuse is not as easy to recognize as the physical signs. Some of the signs that neglect or abuse is taking place may include:
- Keep in mind that abuse can also occur without any physical symptoms. It is also important to remember that emotional abuse be just as common and devastating to the nursing home victim.
- Lack of staff members and lack of service provided
- Rudeness of staff members
- Lack of entertainment facilities
- Lack of patient morale
- Lack of proper diet, nutrition and lifestyle facilities
- Lack of proper heating or cooling
- Lack of proper hygienic cleaning.
If you suspect abuse or neglect you can file a complaint on behalf of the resident with the Minnesota Department of Health, Office of Health Facility Complaints. Minn. Stat. § 145.682, Subd. 1., defines “health care provider” for the purpose of this section to mean: “physician, surgeon, dentist, or other health care professional or hospital, including all persons providing health care are defined under 145.61, subdivisions 2 and 4, or a certified health care professional employed by or providing services as an independent contractor in a hospital”. There may also be a potential breach of contract claim for the failure to provide the care and services as provided. This claim would continue pursuant to Minn. Stat. § 573.01, Subd. 1.
If the resident dies as a result of the negligence of a medical provider would be a potential claim under Minn. Stat. § 573.01, Subds, 1 and 2, for the related medical bills and wrongful death damages as defined by Minnesota Jury Instruction, JIG 91.75., which excludes claims for pain and suffering, grief and emotional distress and focuses on the counsel, guidance, aide, comfort, assistance and protection the deceased would have given had he or she lived.
It is essential that a plaintiff obtain the supporting opinions of qualified experts prior to filing suit. Pursuant to Minnesota Statute § 145.682, Subds. 2, and 4, plaintiffs alleging negligence by a health care provider to provide the defendants with affidavits identifying each expert which they plan to call at trial and the substance of the facts and opinions to which each expert is expected to testify, and the summary of the grounds of each opinion. Minn. Stat. § 145.682, Subd. 6., Failure to provide the required affidavits results in mandatory dismissal with prejudice of each cause of action as to which the expert is expected is necessary to establish a prima facie case.
In Minnesota most claims of neglect against a nursing home are considered to be medical malpractice claims and the requirements the elements of the claim concerning breach of the standard of care and causation must be supported by an expert opinion.
If you believe that someone you love is the victim of elder abuse or neglect in a nursing home or other elder care facility contact an attorney who has handled hundreds of vulnerable adult abuse and neglect cases. Attorney Kenneth LaBore can be reached at his direct number at 612-743-9048 or by email at Ken@MNnursinghomeneglect.com