This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hey out there. Thanks for joining us. I’m Rob Schenk.
Smith: I’m Will Smith.
Schenk: And we are trial lawyers and we practice in the areas of nursing home abuse and neglect in the state of Georgia. Since we are a video podcast, I’ll remind you, not just an audio podcast, you have several ways to consume each episode. First, you can download the audio portion on Stitcher or iTunes and be sure to subscribe to us there. Or you can watch every episode on our website at NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com, or check us out on YouTube.
Interestingly enough, recently, YouTube has provided us with our own custom URL, which is I don’t know where they got their information from, but we are YouTube.com/SchenkSmithLLCAtlanta, so almost more confusing than the actual string of numbers and letters that proceeded it.
So anyways, a lot of good stuff today to talk about. We are going to get right into it. I am going to, as always, maybe not as always, traditionally, which would presuppose not every time, but traditionally we will skip the pleasantries with Will, because he is terrible at improv and can’t be bothered.
So anyways, let’s dive right in. We’re going to talk about the first subject today – it seems strange at first blush to be talking about this particular topic on a nursing home abuse podcast, but it’s actually quite relevant to the care and treatment of seniors, particularly with mental incapacities like Alzheimer’s or dementia, and that is the tragic case of accidental strangulation by window coverings, that is to say window blind cords, curtain cords, drapes, any type of window dressing, window covering that provides for a rope, string, set of beads, whatever it is, that could get tangled around a nursing home resident’s neck and end up either being a near strangulation or strangulation itself. This actually is a major, major problem in residences around the country, around the world I guess.
Smith: Yeah, especially Alzheimer’s memory units that have Alzheimer’s patients, that have dementia patients, because it’s like I was talking with a CNA yesterday, and she was talking about the fact that, not in a condescending way, but elderly residents in nursing homes are like children sometimes. If they have mental problems, then their actions are very much like the actions of children whose mental capacities have not fully formed yet. They don’t understand the world around them. They’re not cautious in their exploration of the world around them and they can hurt themselves on things that may seem innocuous to us, like window blind strings.
Schenk: That’s a good point. There’s a national consumer protection group called the Consumer Product Safety Commission, and they commission studies every so often regarding window blind strangulation, which usually revolves around children, and to your point, Will…
Smith: Most are under the age of 5.
Schenk: …With your conversation, the reason why window blind cords and window coverings of all types present a danger to children, and again, to seniors with dementia or Alzheimer’s or other mental incapacities is two reasons. And this is again from some studies by the Consumer Product Safety Commission.
The first is that children or individuals with mental capacities, number one, don’t understand the strangulation hazard associated with window blind coverings. So it’s approaching a hazard and not comprehending that this is a potential life-threatening hazard that you’ve encountered. You and I can walk up to a hot pan or stove, a hot stove and understand kind of what’s going on.
Smith: Also, elderly residents with dementia are not exactly that same as children. They are in some ways, they can be like children in that they don’t understand the risk, but they can also be like – and I know this almost sounds humorous, but it’s not – they can be like somebody who is on some type of heavy psychotrophic or hallucinogenic drug, because I’ve taken care of residents who would take something like a food item and put it on their face, like they were doing makeup, or they would take a towel and wrap it around their neck like they were doing a tie, because we don’t know what is going on in their mind. Their mind is not the same as a child’s who is not fully formed. Their mind has a deficit, so it is starting to shut down because of their advanced age.
Smith: So they don’t know what’s going on and it could be something as simple as they’re walking up to a danger, and in their mind, they see something else, and what remnants are left in their brain that are still functioning are telling them, “Okay, well I need to put this necktie on. I’m going to be late for work,” and what they’re doing is they’re wrapping a cord around their neck. I have actually seen that exact scenario happen.
Schenk: Right, so the first component is that we have a subset of individuals in nursing homes that don’t recognize the danger. The second reason why this is a lethal hazard is because like many children under the age of 5, particularly toddler, seniors often lack the acquired motor skills to escape the danger. So in the example of the senior that believes they’re putting on a tie and going to work, but in fact they’re wrapping the window blinds around their neck, once they realize they are no longer taking in air, they lack the physical ability to unravel themselves from the danger.
Schenk: Exactly. So these are two dangers. And the statistics on this are pretty remarkable. So studies first started being conducted by the Consumer Product Safety Commission in the ‘70s and ‘80s. So according to them, and I’m not sure where this information is coming from, but we have 41 deaths from drapery cords occurring in the eight-year period between 1973 and 1980 with a frequency of five deaths per year. So that’s the first study. You have 40 deaths, five per year, 1973 to 1980.
Smith: And understand that these are reported.
Schenk: These are reported.
Smith: They have to be reported that that’s what killed them.
Schenk: And also at this point, it’s almost all children. And then there was a 1985 study released again – this was by the American Window Covering Manufacturer’s Association, so this is not a consumer protection agency. These are the actual people who are making the window blind coverings. They say 35 deaths in the five-year period between 1981 and 1985 at a frequency of seven deaths per year. And if I recall correctly, this study by the American Window Covering Manufacturer’s Association did include a couple of seniors in residences, not in nursing homes.
And then you can see the problem is either getting worse or we’re getting better at reporting, but we have, again, Consumer Product Safety Commission in 1992, their study showed that 159 fatal hangings occurred between 1973 and 1992 at an average of 10 per year.
Another study showed between 1996 and 2012, so getting closer to modern times, getting closer to the present day, modern times, there was a total of 285 of window covering cord incidents, including 184 strangulations and 101 near-miss strangulations. Why that’s important is, again, we’re starting to see more seniors involved in that.
So based on these studies or in part based on these studies, a couple of senior organizations, one being the Alzheimer’s Association and the Home Safety Council have both recommended that residences, meaning homes of people, protect their residences with seniors the same way that they would protect their home from the dangers to a child, which includes making sure that window blind cords and window coverings of all sorts are either cordless or have some type of safety feature of what we’d call cleats, where the cord can be hung up or its not going to form a noose.
I think that’s interesting because this is a growing problem in terms of homes. Now what about how does this relate back to nursing home abuse and neglect?
Smith: You know, and this is just a hypothesis that I have based on experience in nursing homes, based on how laws have changed, but I actually think that it is probably getting better in nursing homes, but it is more often reported. And the reason that I say that is we have only recently in my lifetime started really giving a lot of attention to nursing homes. I mean the Nursing Home Reform Law of 1987 is what gave us the Bill of Resident Rights, and what I’m trying to say here is I think that before this, you’re looking at a lot of “One Flew Over the Cuckoo’s Nest” situations where people were put away and not really thought about, and I guarantee you that this happened on a frequent basis, but when an 87-year-old person passes away, it is much different than when a toddler passes away, and so they probably didn’t do any investigation. Now CMS is very heavily involved.
Schenk: The Centers for Medicare and Medicaid Services.
Smith: Yes, the Centers for Medicare and Medicaid Services, which has state agencies enforcing all federal regulations in nursing homes that receive Medicaid and Medicare – they’re heavily investigated, and I think that they report it a lot more. So I think it may have actually – I think it may be decreasing, but we’re finding out about it more and more.
Schenk: So let’s talk about that intersection of a resident’s rights, nursing homes and window blind coverings.
Smith: And that’s actually an awesome segway because the CNA that I was talking to yesterday, I was actually deposing a CNA in another case – she was just a witness to something, but I was telling her about my experience and we were talking, and one of the things that we were both agreeing on is the difficulty in balancing resident rights with resident safety, because you’ve got somebody who is 6-foot-3, 200 pounds, 87 years old and has dementia. It would be in this resident’s safety interest to keep them contained in a certain area. But this is a human being with rights, so you can’t do that, and you don’t want to do that. They should be free to go around and walk around. But what that does is causes extra burden on the staff, because now they have to watch this 6-foot-something man walking around who’s a danger to himself because he doesn’t know what a window blind cord is. He doesn’t know what broken glass is. It’s like having a toddler.
Schenk: He cannot identify the hazards.
Smith: They can’t identify the hazards, but you have to keep that balance of, “Well, we have to let him walk around. He’s a human being and he should be able to do that. We just have to put in extra effort to make sure he doesn’t hurt himself.” And what the nursing home should be doing is putting in extra effort to make sure that those hazards aren’t out in the open.
Schenk: That’s right. And so that is actually the duty to make the facility free of hazards is codified in the code, in the federal code, 483.25h, which deals with accidents. So it says that, “The resident environment must remain as free from accident hazards as is possible, and each resident receives adequate supervision and assistance devices to prevent accidents.”
So here, again, Centers for Medicare and Medicaid Services put window blind strangulation into categories of avoidable accident and unavoidable accident, and we have been involved in cases in which we have argued successfully that generally, anytime that a senior with dementia encounters window blind cords that are of standard type that you see in any office building and become entangled and have enough time to become entangled and strangle themselves accidentally, that is an environment that is not free form hazards. That is an avoidable accident under the federal code.
Again, having window blinds with the cord long enough for a senior to reach in a nursing home, again, is a violation of code in many essences, as well as being the equivalent, in my mind, of placing broken glass on the ground…
Smith: One hundred percent.
Schenk: And from the standpoint of you have to maintain resident privacy by having blinds – okay, fine, I get it, but there are a lot of ways. You can have curtains without cords. You can have blinds that don’t have cords – they’re not expensive and they’re literally pennies. It costs pennies in many of these cases to safety-fy – What’s the word I’m looking for – to make safe window blind cords that are in nursing home residences.
It’s rare, but when it happens, in my mind, and again, we’ve argued this, that it is never an avoidable accident when a senior in a nursing home or a long-term care facility accidentally becomes strangled by window blind cords.
Smith: It is always an avoidable accident.
Smith: It’s never unavoidable.
Schenk: It’s never unavoidable.
Smith: Yeah, and it goes back to my favorite phrase about nursing home owners – not the staff, but the owners – pigs are cute, hogs get slaughtered. Again, these are nursing home companies trying to penny-pinch and save money, because it’s not as though we don’t have the technology to have better blinds, right? That’s all there. There’s no reason. It’s probably actually hard nowadays to go to IKEA and purchase a more dangerous blind because they’ve gotten rid of most of them. It’s just not worth it.
So these blinds are from the ‘80s, some of them from the ‘70s I’m sure, and they don’t want to spend the money to make these places safe because in their estimation – this is how cold they are – in their estimation, it’s cheaper to deal with the few lawsuits that come out of this regarding someone’s death than to do a complete makeover.
Schenk: Than to fit 1,000 windows with cordless blinds or the pennies for the… It is a common hazard that does not result in death often, but it’s often enough that if you have a loved one in a nursing home or a long-term care facility, it is worth your time to investigate whether or not your loved one has access to this particular hazard and to take steps to alert the staff that this is not kosher, it’s not good and to make the changes that would make the environment free of hazards or at least safer from hazards for your loved one.
Smith: And that’s a very good point. That’s something else that you should look for. We’ve talked about previous podcasts – when you physically do reconnaissance on the nursing home that you’re going to put a loved one in, you look for the smells. You look for the residents doing activities. Also, treat it like you would a daycare. Go in there and look around. What are the electrical plugs like? Are there any sharp edges? Are there window blind cords hanging around? How safe does this facility look? If I were just to let a 6-foot toddler loose in this facility to walk around, would they be safe? That’s a very good question. I mean you have to answer them.
Schenk: We had in our elementary school – we weren’t toddlers but I think we might have been in third grade, and we had a student in our class that was 6-foot tall, and it was difficult to play basketball with him because he would throw the ball so hard that it would go past us, and it would be thrown so hard that it would hit the gym door and open the door to the gym. It was pretty impressive.
Smith: There’s something in the water up there.
Schenk: Anyways, all right. Moving on, this would fall under, I don’t want to say strange, but this is not something that we encounter a lot in terms of the catalyst for a lawsuit. But this story comes to us out of Hampton, New Hampshire. A lawsuit was filed against Oceanside Center by the family of resident Betty Pettigrew.
In the lawsuit, the family of Betty argued that the chemicals used to style Betty’s hair were applied incorrectly, and I guess were not removed correctly, causing Betty to have an allergic reaction that caused burns to Betty’s shoulders, made one of her eyes swell shut that led to a vision impairment, which itself led to Betty falling and breaking her hip, and then dying from the complications of the fall and the broken hip.
So just so we have the timeline correctly, we have Betty was having her hair styled by what the article describes as independent contractors, so hairstylists of Hampton, New Hampshire, or I don’t know if it even mentions who they are – oh, Generation Hair Care. I’m not sure if it mentions who it is – oh, Generation Hair Care.
So Generation Hair Care comes in. They are styling Betty’s hair, yada-yada-yada, use either the wrong chemicals or incorrectly uses the chemicals that they’re supposed to be using, do not remove the chemicals, which causes the burn to the shoulder, and then it gets into the eye. The eye swells shut, can’t see, sometime later falls, breaks her hip, and because of the broken hip, dies. That’s our timeline.
So the family is suing the nursing home saying, “Listen, number one, you’re responsible for the burns and the pain and suffering due to the hair styling that went wrong, and you’re also responsible for the fall.” In other words, now that you know that she’s walking around with one eye, you should have done things to protect her from falling.
So the response to this by the nursing home is that, number one, we’re not responsible for independent contractors, and in terms of the pain and suffering and the burns, and number two is she was walking of her own accord without her walker, which she was supposed to be walking with, her walker.
So that’s a lawsuit that’s been filed in Hampton, New Hampshire. So there are a couple things with that. Number one is that the chain of events in this remind me of a lawsuit that every student has to read in the first year of lawsuit.
Smith: Old Palsgraf.
Schenk: Yeah, Palsgraf. So Palsgraf is a case that has to deal with what’s called proximate cause. So let’s get philosophical. We all know there’s a movie – you loved this movie, I can tell you this right now – it’s called “The Butterfly Effect.” So a person – what’s it, a butterfly flaps its wings and then there’s a tornado at your mom’s house.
Smith: Yeah, and they talked about that in “Jurassic Park.” So one little thing – it’s like the universe is one giant Rube Goldberg machine and you don’t know where the comedy of errors is going to end up.
Schenk: Exactly, and that’s what the Palsgraf case had to do with it. So really quickly so we don’t put everybody to sleep when we get to the actual point of this, but the Palsgraf case – so every action has a beginning. So the Palsgraf case, I think it’s 1920’s…
Smith: Something like that.
Schenk: You’re at a railroad station. There’s a man that has a bag and he’s getting on the train, but it doesn’t look like he’s going to make it, like he’s going to fall on the tracks, and there’s a railroad employee on the train and a railroad employee behind the guy with the bag. And they’re like, “Oh crap, we’ve got to help the guy get on the train or he’s going to fall onto the tracks.” And so they pushed him onto the train, saving his life probably, but the bag dropped. And guess what’s in the bag?
Smith: It was dynamite.
Schenk: I think it was fireworks.
Schenk: Okay, but anyways, same issue. It’s gunpowder. So the fireworks blow up, which causes on the other side of the railway station, a scale to fall, and I think there was some other activity. This is all from my memory from law school. It causes something else to happen.
Smith: One more thing.
Schenk: One more thing that hurts a woman who’s named Palsgraf. And so Palsgraf brought a suit against the railroad, and so – oh God, what’s that guy’s name? The judge? – The teacher always said his name with emphasis.
Smith: Learned Hand?
Schenk: No, the other other one. There were two state court judges. Cardozo. She’d always say, “Cardozo.” But anyways, Cardozo the judge in that case said, “Listen, there’s an element of foresee ability with that butterfly effect. If I do something, if a person does something that causes the beginning of a chain of dominos with the understanding that there’s a possibility out there that may happen, that’s when you have what’s called the proximate cause. Not only did I cause the bad thing that I could foresee, but I’m the proximate cause as well. I’m the direct cause and the proximate cause. In the Palsgraf case, Cardozo said, “Listen, ma’am. These guys are pushing this guy. They don’t know what’s in the bag. How are they supposed to know or assume the guy had dynamite or fireworks?”
Smith: And you have to understand something here that this is done with the phrase “foresee ability” lacks imagination. So it’s not whatever you could imagine. So for example, surely if you rear-end somebody, you could imagine that their failure to have a car could lead to them missing a court date, which could lead to them having their house foreclosed on. Yeah, you can imagine that, but that doesn’t mean that it’s foreseeable. It has to be reasonably foreseeable. So what’s foreseeable in that case, is they’re probably going to have to go to the hospital since I rear-ended them.
Schenk: Right, exactly. So in this case, this is what struck me. I think that there’s a lot of chain of dominos in this case, maybe not to the plaintiff’s lawyer that is handling this case, but I just think that’s what came out of my mind. So the two issues in this case are – is the nursing home responsible for contractors? Generally in tort law, that’s probably not going to be the case for reasons that we won’t get into right now. And second of all – is this nursing home on the hook for the fall? We don’t have enough facts here to figure that out, but generally when you have a nursing home resident, you have to assess and continually update their assessment of their level of fall risk. And here we have a lady with beautiful hair that now has impaired vision in at least one of her eyes and they, they being the nursing home, probably should have done extra things, precautions, to make sure she doesn’t fall. But in this case, she should have already had a walker, things like that. We’ll see how this goes. We’ll come back and visit this particular case of the bad…
Smith: I think there’s more of an argument to be made here, that if you rear-ended somebody, they hurt their eyes, and then later at home, because they hurt their eyes, they fell down some stairs and broke their hip – there’s no proximate cause there. Here, because they have to constantly do that reassessment of her fall risk, maybe.
Schenk: I feel there’s proximate cause in which you blinded someone in a car and they fell down and hurt themselves. See, this is why this is debatable. We need to ghost of Cardozo to come back to life and render an opinion on this.
Schenk: Cardozo went onto become a Supreme Court Justice.
Smith: Yeah, he’s got a law school named after him.
Schenk: But not Learned Hand.
Schenk: I don’t think Learned Hand did.
Smith: What a name to have too – Learned Hand. That’s such an 18th century name.
Schenk: It really is. So speaking of 18th century, not really, it’s too hard – I need improv class lessons. What I was trying to do is try to segway from 18th century to the end of the program by saying something pithy and cool about how this drudgery of 18th century is now over, blah, blah, blah, but I’m just going to say, listen, that is going to conclude this episode of the Nursing Home Abuse Podcast. We hope that you’ve enjoyed it. Again, as always, you can download the audio portion of this podcast on Stitcher, iTunes or any application on which you are already downloading audio for other podcasts – I don’t know how to say that. I don’t even know if there are others, what the other ones are. I just know that I use Stitcher and iTunes. But anyways, this podcast is available on those mediums as well as on our website, which is NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com, or you can check us out on our YouTube channel with our snazzy new URL, which is more complicated and lengthy than the numbers and letters that it was assigned originally. And with that, thank you for joining us and we will see you next time.
Smith: See you next time.
Schenk: All right.
Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information about the topics discussed in this episode, check out the show website – NursingHomeAbusePodcast.com, that’s NursingHomeAbusePodcast.com. See you next time.