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: And 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. We’re coming to you from our offices in Atlanta, Georgia, specifically our office library, a.k.a. The Dungeon.
A lot of good things to talk about today. I’ve learned not to ask Will how he’s doing because he is a zero at improv and he couldn’t answer like a normal person. So we’re going to skip the pleasantries. I’ll tell you that I’m doing fine on this Monday morning or whenever you happen to be listening to it. I hope that I’m doing fine at that point. Lots of interesting topics today for the Nursing Home Abuse Podcast.
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Like I said, lots of good things today – lots of good things, like who’s that, Martha Stewart? Who’s like, “Good things?” Is that Martha Stewart?
Smith: I, along with everyone else who is watching or listening, have no idea what you’re talking about.
Schenk: No, I feel like Martha Stewart is known for saying, “These are good things,” like, “It’s a good thing.” Did I make that up, or is that Oprah?
Smith: I think so.
Schenk: Some powerful woman with a lot of money and an entertainment group behind them says something along the lines of “It’s a good thing.” I’m pretty sure. If not, it starts on this episode.
Smith: Right. You heard it here first.
Schenk: You heard it here first. So at the end of 2016, there were some technological innovations in the detection and care and treatment of a particular type of injury that is common and unfortunate…
Smith: …And devastating…
Schenk: …In long-term care facilities. And that injury is the pressure ulcer, more commonly known as the bedsore.
Smith: Yeah, and also called decubitus ulcer.
Schenk: What is a decubitus ulcer, a bedsore?
Smith: Essentially it’s a breakdown of the skin on a bed-ridden patient where the pressure of either the bone or the body is causing friction or pressure against the mattress.
Schenk: And what eventually ends up happening unfortunately is that the pressure or the friction or the sheer to the body ends up depriving the tissue and the muscle underneath the skin from getting blood. And without blood, the tissue and muscle decays.
Smith: And this is a very horrible thing to witness. We actually interviewed the family of an individual yesterday and the son-in-law was telling us that he was under the impression that bedsore was like a little rash or a little red spot, and he was absolutely astonished to find the stage four bed sore on his mother-in-law went all the way to the bone. A bedsore is probably almost too innocuous of a word. It is a wound. It is in many cases a wound that can start off as a red spot and then it ends up going all the way to the bone.
Schenk: That’s right. So as you mentioned stage four in the case of our client, generally a bed sore is going to be categorized or indexed according to various stages, and those stages are one through four, and then if it’s difficult to observe or figure out, or if it’s just so bad, it’ll be unstageable, but the stages go from one to four – one being the least harmful and four being maximum harmful and depending on the level of depth and width and the size of the wound, so stage one sometimes will just be a blemish or sometimes it’s just a red mark to stage four, which you can put two of your fists inside someone’s body and see bone.
Smith: And they become necrotic and becomes septic, and it can be fatal. A stage one bed sore is not that uncommon, and what should happen is when a nursing home discovers, “Hey look, there appears to be the beginning of a skin breakdown,” they start making sure they’re turning the resident, they’re repositioning the resident even more. If it gets to stage two, you may get wound care involved. But then if it gets to stage three and then ultimately stage four, you’ve got some serious neglect going on.
As a matter of fact, CMS, the Centers for Medicare and Medicaid Services, considers pressure ulcers, bedsores, to be avoidable. And they can be. Again, what should happen is the nursing home notices a one or maybe a two, they should pull out all the stops and make sure it doesn’t progress.
Schenk: That’s right. So CMS, Medicare and Medicaid Services, will view bedsores as an injury that can either be avoidable or unavoidable and based on the criteria of each individual resident. Most of the time, they are avoidable. Now how do you know whether or not your loved one, if they have a bedsore, if it was avoidable or unavoidable? Well it’s going to depend on a few factors, but if a facility that you’re loved one is in is receiving Medicare or Medicaid services, then they’re obligated to do certain things, which would determine whether or not it’s avoidable or unavoidable.
Smith: Right, and it’s important that you check your loved one out. When you go there, it’s an absolutely good idea for you to look over their body to check them out, ask them how they’re feeling, to ask the staff if you’ve noticed any sores. Be very proactive. I think that’s important.
In the case that we had yesterday, the family didn’t even know she had a stage four bedsore until she went to a different facility, and that’s absolutely unforgivable.
Schenk: There are different criteria to determine whether or not something is avoidable or unavoidable in the context of how Medicare categorizes these wounds. So if a long-term care facility receives funding, then they are obligated to do certain things. And the first thing they’re obligated to do is to assess each individual resident for their particular risk to getting a bedsore. So for example, if an individual resident is bedridden or is immobile, they are at higher risk. If they are unable to move themselves or reposition themselves, they are at a higher risk. If they’re incontinent, they’re at a higher risk. So there are various risk factors that should be assessed once the resident is placed in the long-term care facility.
And based on the level of risk, then certain interventions should be made by the long-term care facility. So for example, making sure that a resident is turned at a certain interval. Oftentimes when a bedsore has gotten to be bad in higher stages, it’s once every two hours or even actually it can be more often than that.
Smith: Yeah, typically what you see are patients that are non-ambulatory, meaning they don’t walk on their own and they’re bedridden. As CNAs, we would have to go around every two hours to change people anyways. So when you go around during that two-hour shift of changing, you would reposition them. So that means that if they’re lying on one side, you turn them over to the other side and place maybe a wedge behind them so that they’re not on the same spot.
But if somebody has progressed to a stage three or a stage four, you’re using a lot more interventions. You’re using a waffle mattress, maybe special kinds of boots that you put on their heels…
Schenk: You get into different types of diets. You change the diet, make sure they’ve got enough protein.
Smith: You’re constantly… You may even have a wound vac on there. You’re constantly turning them.
Smith: But by and large, they need to be turned at least every couple of hours.
Schenk: So when you have a long-term care facility that has assessed this risk and has followed up and has assigned certain interventions to take place to reduce the risk or eliminate the risk of bedsores and they fail to do that, or they fail to take an assessment – that is when the bedsore, according to CMS, Medicare and Medicaid Services, would be avoidable. So now there are bedsores that are unavoidable where the long-term care facility does all those things, does the assessment or does a good assessment and does appropriate interventions and it still happens, that is unavoidable and generally there’s no claim there, but for the most part, if a long-term care facility is doing all these things, it’s going to avoid the bedsores.
Smith: Yeah. I mean it is certainly possible that an individual could come in and they would use what’s called the Braden scale to determine their likelihood or what level they are for developing a bedsore. They do the proper risk assessment and they take the proper precautions and still the person has a breakdown of the skin. There are many different contributing factors other than just pressure on the skin. There’s also circulation, if the person has diabetes, if they have peripheral arterial disease, heart problems.
Schenk: That’s right, and I think a good perspective to look at it is as we learned in fourth-grade health, the skin itself is an organ.
Smith: It’s an organ, yeah.
Schenk: So you can have organ failure. You can have skin failure. But at the end of the day…
Smith: I would say though that 99 percent of stage three and four and unstageable bedsores are because of negligence.
Schenk: I would agree anecdotally with the fact that if you made it to that level, then the person taking care is not doing what they’re supposed to do.
Smith: And it’s typically, it’s the interventions and procedures to avoid the bedsore where you find the negligence. Even if they’ve done a proper assessment, they still fail to properly execute that, because you’ve got to think, the person doing the assessment puts it in a chart, and then they rely on the rest of the staff, which is oftentimes understaffed, to carry this plan out, and that just doesn’t happen.
Schenk: That’s right. So the effects of a stage three, stage four or unstageable bedsore, pressure ulcer, decubitis ulcer can be catastrophic. So as you can imagine, you have dying and decayed tissue, dying and decayed flesh, dying and decayed muscle exposing the bones, tendons, the inside of the body to open air, which means that you’re going to have a high, high risk of getting a bacterial infection of some sort. So that can oftentimes be the grave consequence of a bedsore, that is sepsis or other infections of the bone, the muscle or the blood. When that gets in the system, it can shut your entire body down.
Smith: It’s fatal, I mean septic shock, at least anecdotally, you know, it ends up being the number one result of a stage four bedsore in our experience.
Schenk: That’s right. Now that we have a little bit of a better understanding of what a bedsore, what a pressure ulcer is and what type of wound it is and what it can do if it’s not treated properly, one of the red flags or one of the catalysts for bedsores, pressure ulcers is moisture, which can lead to quicker breakdown for someone that is laying in bed or sitting in a wheelchair.
And a new company, or I guess I don’t know if it’s new, the product is new, were testing a synthetic silk sheet to determine if a new fabric would wick away the moisture and heat of hot flashes to allow women going through menopause to sleep better, and that was their intent. It’s kind of how they discovered penicillin. So you have a company that was testing a certain type of sheet made of silk for older women to be able to sleep better, and they realized after clinical trials, after 11 clinical trials at several hospitals, it showed the use of the silk sheet, the synthetic silk sheet, reduced the incidences of pressure ulcers between 65 and 80 percent.
Smith: That’s phenomenal.
Schenk: Right. It’s just amazing to me that you’re trying to do one thing and you end up discovering a method or a treatment for another thing. It’s kind of like, what is that stuff you get on your face? Botox.
Schenk: So Botox, as we all know, or Will knows, you get Botox to reduce the effect of wrinkles on your face. So I think Kenny Rogers, Joan Rivers…
Smith: Yeah, anybody that’s a celebrity and older.
Schenk: Those two are definitely celebrities.
Schenk: But they would get the Botox injections, but of course, thousands of injections later, these doctors with their clients coming back saying, “Hey, my wrinkles are gone, but also my migraine headaches are gone.”
Smith: Yeah, they discovered it works on migraines.
Schenk: They discovered that Botox works to reduce the symptoms of migraine headaches, so it’s an incidental benefit for something… Anyways, evidently this company was trying to find how to make our senior ladies sleep better, and they realized they had come upon a preventative measure for bedsores, and I think that’s fantastic.
So it looks like here the reason why the synthetic silk works better is because traditional cotton sheets, the short fibers of cotton break down with use and become abrasive. So when they’re abrasive and get wet with moisture, it gets sticky and creates torque and shear, so I guess the science behind why moisture can be deadly in terms of sitting there on those sheets, but that’s an interesting thing.
So according to the company Precision Fabric, “We set out seven or eight years ago to develop a product that would be incredibly kind to the skin and would manage the moisture, friction and shear, and we learned after doing clinical trials that we have something special.”
So let’s see – it looks like FDA has not approved it yet. They’re seeking a patent on it and this is just the beginning, according to a spokesman for the company.
Smith: That’s going to be interesting to see how this plays out. What’s also interesting is another device that was also originally used for something else, and that was technology that was devised for the Mars rover has found its way into a medical device that can detect bed sores – not prevent them, but it detects them several days, up to four days sooner using technology that was designed by NASA. So that’s pretty interesting.
Schenk: Yeah, so looks like here the new wireless device is able to detect the pressure sores up to 10 days before they appear on the skin service, giving clinicians time to treat them before they become problematic. Traditionally, pressure ulcers have been identified by visual inspection from caregivers and treated using the protocols that we mentioned in this podcast. But a lot of times, we did mention the fact that once you’re seeing something, once you’re seeing it, you sometimes can be too late.
But it looks like here, it’s an SEM scanner from California-based Bruin Biometrics. Forty-seven patients took part in the trial, and in that trial, they found on average the scanner picked up a pressure sore 3.9 days sooner than visual inspections by nurses.
Smith: And what they say is that it detects the inflammation to begin with because bedsores actually develop below the skin surface from the inside out. And once the inflammation starts, it’s not visible to the human eye, but it can be measured and detected with these scanners day before the bedsore develops. So if you think about it, the pressure sore where the skin is pressing against the mattress creates a restriction of blood flow to the specific part of the body to the skin, and that starts the inflammation. And what happens is the scanner detects that inflammation up to four or five days before a bedsore even arrives. So there’s a possibility that using this, using these sheets that they’re making and using all the other precautions that we can dramatically reduce the incidents of bedsores.
However, what you have to remember is that in the United States, there are two kinds of nursing homes. There are for-profit nursing homes and not-for-profit nursing homes. The for-profit nursing homes are owned by corporations, and like any other corporation that has a board of directors, that has investors, one of the most important things if not the most important thing is the bottom line. And studies have shown that by and large, care is better in not-for-profit nursing homes. So whether these for-profit nursing homes are going to be spending all of that extra money on scanners developed by NASA and special sheets that prevent bedsores is yet to be seen. My guess is probably not.
Schenk: Right, so in a lot of ways with the progression of civil trials and tort law, what happens is that the more inexpensive a preventative item becomes, the more common it becomes in its use, the more likely it is to say to someone, “You didn’t have this scanner. You don’t have these synthetic silk sheets. That is an element of negligence on your part because at this point now, it’s so ubiquitous or the cost far outweighs… The expense…” What am I trying to say?
Smith: That’s what it would be in the future. As it stands right now, it’s not even approved by the FDA. I would imagine that one of these SEM scanners probably costs somewhere in the range of six figures, so this, as of today… If not more…
Schenk: So they’re not scrambling for it, but this would be an argument and a debate that we would be having three, four, five, six, 10 years into the future. But I guess the bottom line is this – if you’re a scientist out there and you’re working on something, you’re probably going to find an answer to a problem you had not thought of or you did not intend.
Smith: Absolutely. Interesting.
Smith: And so actually now we’re going to another area of equipment that is used very often in nursing homes, and that is the lifts. And there are two actually, generally two types of lifts. There’s the Hoyer lift, which it’s a machine that uses hydraulics or uses electricity, and what it does is you put a pad underneath the resident, and then you attach the pad to the hooks on the machine, and it lifts the resident up.
And then there’s also another machine that assists the resident standing up. For example, if you can imagine in your head, the resident is sitting down and you put a strap behind them and attach it to the machine and it helps them stand up on their own feet. So they’re still on the ground on their feet, but the machine helps pull them up. The Hoyer lift is completely pulling them off the ground.
Schenk: And so we talked about that because there is a case out of Springfield, Illinois in October-November of 2016 here. A Springfield nursing home with a history of problems is facing a six-figure fine from the government and a lawsuit from the widow of a man who died after being thrown from a van’s faulty wheelchair lift. After sustaining a broken neck when his wheelchair was catapulted from the lift at Lewis Christian Village on West Washington Street, Bob Folder was loaded onto a wheelchair without being examined for neck and spinal injuries and wheeled back into the nursing home even as his wife implored the staff to call 9-1-1. Folder, who was age 77, died weeks later. He died from respiratory failure caused by a broken neck.
So here again, we have obviously a terribly story where you have an incident in which there’s negligence that caused an injury, but then there was negligence after the injury in the sense that they knew that an individual was hurt, but they didn’t do anything and they didn’t do anything in time. So this is a sad story.
Smith: It is. And you know, time and time again, this is what we see. Not only is there the potential, initial negligence of him falling off this lift that was putting them in, this wheelchair life that was putting them into the van, but then it’s what they failed to do afterwards. In this case, when asked under what circumstances the staff would call 9-1-1, because they didn’t, an investigator went to the staff and investigated this case and said, “Well why didn’t you call 9-1-1?” And when they asked the staff, “Well what circumstances would you call 9-1-1?” she goes, “Well only if there’s a true emergency.”
Schenk: Yeah, that’s exactly what she said – “We call 9-1-1 if there is a true emergency.”
Smith: Yeah, this man was thrown from his wheelchair and the wheelchair lift onto the ground. Unless you have x-ray vision, you have no idea what has happened to this individual. Anytime a resident falls, anytime there’s been impact, they need to go be checked out, because again, their bodies are not the same as some 20-year-old linebacker that’s playing college football. This is an individual who has a weakened state, and in this case, he unfortunately broke his neck and it killed him.
Schenk: Yeah, so in terms of whether or not he should have fallen in the first place, sometimes that’s a hotly contested issue. Sometimes you can’t prevent every fall, but in this case, the Illinois Department of Public Health issued a $50,000 fine over the incident after investigators found that the lift had broken parts and had not been properly maintained. So the issue of whether or not he should have fallen off the lift or been thrown off the list, that’s open and shut in the eyes of the government, I can tell you that.
Smith: Yeah, and an interesting Georgia connection here – this man, prior to being in a nursing home, would make fishing lures for anglers, and one of his biggest customers was former President Jimmy Carter from Georgia.
Schenk: So we have another sad story. This would be, my feeling, more peculiar, although not terribly uncommon, of violence between nursing home residents. Here in Buffalo, New York, last year, police say Ruth Murray, 83, accidentally walked into the room of another patient at Emerill South Nursing Home. A fight broke out between Murray and the other resident, who is male. Murray herself has Alzheimer’s. The older man ended up killing Murray. So you have one resident who has Alzheimer’s walking into the room of another resident, who obviously also lacked mental capacity, and it ended up in her death.
So criminal charges were brought by the Erie County district attorney, but after investigating, they are not going to accuse the crime. He’s not going to face charges because he doesn’t have the mental capacity for criminal intent.
Smith: And just a quick criminal law background, you have to do the guilty act, which is the actus reus, and you also have to have the guilty mind, which is the mens rea. So in this case, even though he committed a guilty act, clearly if he’s got dementia or Alzheimer’s, he doesn’t have the requisite mens rea to be held guilty.
Schenk: That’s right. And this is for the actual violation of a criminal statute. This is not to say that the nursing home would not be liable…
Smith: Right, that’s a whole different matter.
Schenk: …Civil liability for this matter. So in this case, I’m not saying – because we don’t have enough facts here, but if the nursing home knew that they should have separated these two individuals or there’s some history of violence with one towards another, then that might open the facility to a lawsuit on behalf of the deceased in a negligence claim. So you have the difference between criminal and civil, which will probably end up being the topic for another podcast.
Smith: Yeah, absolutely. Well it’s interesting – sad, but interesting situation. And unfortunately, it happens. It happens very frequently. You have individuals that don’t know where they are. They don’t know…
Schenk: They get confused.
Smith: They get confused. They get frustrated. They get angry and they lash out. And they lash out at the residents. They lash out at the nursing home staff. They lash out at other people’s families. And it’s just a sad, sad situation. The only thing you can do is just be vigilant and situationally aware. And in a case like this, if that nursing home wasn’t vigilant and situationally aware, then they might be liable. Otherwise sometimes you just can’t – humans are humans. You just can’t predict what they’re going to do.
Schenk: I would like to think of myself as situationally aware, and at this time, I am aware that we have come to the end of this particular episode of the Nursing Home Abuse Podcast. As always, you can either consume this podcast through Stitcher or iTunes in the audio portion. You can check us out there, subscribe to us, leave us a good review. Or you can watch this podcast, watch us as we bring you the news and information. You can see us on our website at NursingHomeAbusePodcast.com – again, that’s NursingHomeAbusePodcast.com – or you can check us out on our YouTube channel. Until next time.
Smith: Until next time.
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