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: Hello out there and thanks for joining us. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial attorneys in the state of Georgia practicing in the areas of nursing home and neglect, and we happen to be your co-hosts of the Nursing Home Abuse Podcast Episode 33. We’ve made it to 33 episodes.
Schenk: That would be the equivalent of I think two seasons of a sitcom.
Schenk: You know what I’m saying? If this is Seinfeld, we haven’t quite hit the critical mass of viewership, but we’re really coming into our own in terms of our content.
Smith: Yeah, so it’s kind of like that movie or that show that you like with Nathan Fillion, “Firefly,” that was on SyFy? It last two seasons andthen was taken off, and then people like you, I guess you guys call yourselves Fireflyians or something like that – anyways…
Schenk: So we now have cult status.
Schenk: Right, which that was also made into a movie that you picketed called…
Schenk: “Serenity.” Yeah. You picketed outside that movie theater because it wasn’t…
Smith: …True to the original.
Schenk: …True to the original TV series.
Smith: Yeah, the same thing you did with Battlestar Gallactica, the reboot.
Schenk: Battlestar Gallactica has a high female viewership. Okay, so anyways, so we’re really coming into our own in terms of content and I think this episode is no exception, Episode 33. Today we’re going to be talking about the four things to do if you suspect that your loved one has been a victim of nursing home abuse or neglect – the four things that you should do if you suspect your loved one has been abused in a nursing home.
We get this question a lot actually – usually our clients walk in the door with potential claims and they don’t know where to start. Sometimes it’s the injury that they suspect has happened months ago, years ago, a week ago. It just depends, but by and large, these are just four of the things that we would recommend you do if you suspect negligence or abuse.
Smith: Yeah, absolutely.
Schenk: The first one is…
Smith: And just so you understand, the first and the second and done essentially contemporaneously together, but still…
Schenk: So some would say that’s one thing to do and not two different things.
Smith: We had a disagreement on whether or not these were two things or one thing and a subcategory, but nevertheless…
Schenk: Nevertheless, for the sake of ease of listening, we’ve divided these into four steps. The first step in what we tell people if they suspect abuse or neglect in nursing homes is to tell the staff.
Smith: Or discuss it with the staff.
Schenk: Discuss it with the staff of the nursing home.
Smith: Even though you think, for example, you go in there and your mother has a bedsore, let the charge nurse know. Let the director of nursing know. Should they know? Yes. Do they know? Maybe, maybe not. But either way, you need to make sure that you put them on notice – “Hey, listen. This needs to be taken care of,” because your ultimate goal in any of these situations is not – and I repeat – it is not to have a good legal case. You don’t want to have a good legal case. You want your loved one to be injury-free and healthy.
Schenk: That’s right.
Smith: So try to prevent them from being in a situation where they have a good legal case.
Schenk: And that’s the point is that the ultimate goal is that your loved one is healthy.
Schenk: So pointing to the nursing home and saying, “Hey, here’s a bedsore here,” is not guaranteed but likely to get the squeaky wheel greased and possibly prevent that bedsore from developing even worse, going to…
Smith: Stage three, stage four…
Schenk: Right. So now you could keep that information to yourself and the bedsore could get worse, but you don’t want that.
Smith: No, you don’t want that.
Schenk: Right. So getting information from the staff, maybe the staff had turnover or maybe the third shift person doesn’t know about your mother’s bedsore, maybe something’s happened where it’s not an all hands on deck situation but making the staff aware of what’s going on oftentimes takes care of the issue if it’s – I’m not going to say it’s an innocent mistake – but if all things being equal, if you point it to attention, a lot of times it will get taken care of.
Smith: It should.
Schenk: It should get taken care of. It’s also, and we say this time and time again, it’s really good to get on a first-name basis with the individuals that care for your loved one. Know who the CNAs are. Know who the director of nursing is. Even if possible, know who the administrator is.
Schenk: Oftentimes we find that the more that you’re involved in the day-to-day operations of the nursing home, particularly as it pertains to the care that your loved one receives, the less likely it is that they’re neglected or abused because they know that somebody’s coming around and being a watchdog. So anyways, that’s a side tangent, but if you suspect anything, get involved. Get involved soon. Schedule appointments. Schedule meetings. Take it all the way to the top brass.
But if you suspect nursing home abuse or neglect, that’s what we recommend the first thing to do, and it’s exactly as Will said – you’re not necessarily trying to build a claim. You’re trying to make sure that your loved one is cared for properly. And it’s a situation where it can be you may come along and the injury is catastrophic and there’s nothing you could do to alert anybody.
Smith: Right, yeah, in a situation where you walk in and your mother is deceased…
Schenk: Or in massive septic shock.
Smith: Yeah, so you’re going to skip some parts. So the next one would be…
Schenk: The next thing that we recommend you do if you suspect nursing home abuse or neglect is…
Smith: Documents and documentation.
Schenk: Gathering evidence.
Smith: Gathering evidence. So that includes – look, a picture is worth 1,000 words, especially when you’re talking about bedsores bruises.
Schenk: Bruises. Abrasions.
Smith: Abrasions. Cuts. Anything like that, if you take a picture – take pictures. Take as many pictures as you can because if I’ve got a picture of the bedsore that you’re talking about, it’s really going to help me convince the insurance company, “Hey listen, this is what a jury is going to see.” So that’s extremely helpful.
Schenk: And along with that, a little side note, when taking pictures, I highly recommend because oftentimes this will be done with your phone, but to make sure that gets uploaded to someplace safe because there have been at least a few occasions in my experience as an attorney that there were pictures taken with the phone, but at some point along the lines, that phone was dropped in the toilet, it was dropped on the ground…
Smith: Lost, stolen, anything.
Schenk: Anything. So it’s important to save those photographs and to document them appropriately. So like making sure that you know, you’re looking at the – if it’s a bedsore and there are multiple bedsores, make sure that you document which bedsore we’re looking at. Which part of the body is this picture?
Smith: What date did you take this picture?
Schenk: What date did you take the pictures? All these types of things will help out in the future down the road, but the most important thing is making sure this picture gets saved to a location that’s safe. It’s not safe if it’s just on your phone. So photographing is important.
If there’s any possibility that someone has witnessed the abuse or neglect, that’s important too, so oftentimes I think, I don’t know what the percentage is, it’s very high, that if your loved one’s in a nursing home, they’re sharing their room with another resident, and that resident has family or that resident might not have cognitive impairments. So if those individuals are willing to talk to you, it might be worth your while when you’re taking pictures and gathering evidence to talk to them about it if they’re open to it.
Smith: And document the steps that you’ve taken. You know, on February 2nd, I found a small abrasion on Mother’s back and I notified Cathy Johnson – I’m making up all these names – Cathy Johnson, the director of nursing who said this and this. On February 20th, I noticed that the abrasion had gotten larger and I notified the charge nurse, Tammy Richardson, and she said this. If you can do things like that, the more evidence you have, the better.
Schenk: That’s right.
Schenk: That’s right. And obviously if your loved one has little or no cognitive impairments, talk to them. Find out where did that abrasion come from. Where did this bruise come from? These types of things – gather as much evidence, time, date as you possibly can.
Smith: Because that’s going to help – did you have one more on this one?
Schenk: Yes, I didn’t say medical records.
Smith: Medical records, absolutely. Go ahead and request those medical records.
Schenk: And how do you do that?
Smith: You can go to the director of nursing and say, “I’d like to get Mom or Dad’s medical records.” I mean that is how you would go about doing it as the family member of the loved one. It’s as simple as that, and they’re either going to give them to you or not, and if they don’t, they may tell you why and you may try to remedy that by going, “Well here’s a HIPAA that Mom signed,” but at the end of the day…
Schenk: Or power of attorney.
Smith: Or power of attorney. At the end of the day, it is a less formal process than what we have to go through. Just go, “Hey, I just want Mom’s medical records from February to March. Can I get those?”
Schenk: And depending on if you have the requisite power of attorney or just a written authorization to review medical records, you can do that to all of your loved one’s medical providers. So if your loved one went to a hospital, you can get the medical records, primary care physician. All those, you can get those records. And as we’ve explained in previous podcasts, medical records can be very important in understanding whether or not there’s been neglect. Medical records can tell you whether or not, for example, if nursing staff have responded to obvious signs of distress or infection. Medical records can tell you whether or not your loved one has been repositioned in a timely fashion because these are the types of notes that should be indicated in your loved one’s nursing home records. So records are very, very important, and it’s good to get those right off the bat, but again, if you don’t or they tell you to go pound sand, then obviously you can have an attorney do it, but that will be later on in step four.
So to summarize, tell staff. Get involved at the staff level. Let them know that you’ve pointed out that there’s the possibility that your loved one has fallen through the cracks and they need to take care of it. Second thing is to gather as much evidence as you can in the form of photographs, talking to other people if possible, getting medical records.
Smith: And the reason, I just want to say that the reason those two things are important is that it sets you up for three and four, because three and four are where you have done everything that you can do. You’ve told the staff, you’ve gotten all the records, you’ve taken photographs, you’ve gotten evidence, and now it’s out of your hands, so three and four is you’re going to outside help. And three would be you’re going to either the Department of Community Health or an ombudsman.
Schenk: Okay, so going to an ombudsman – what does that mean?
Smith: So ombudsmen are legal representatives employed by the state that can assist individuals with issues in long-term care facilities. So there are specific long-term care ombudsmen in the state of Georgia, and I think we mentioned in a former podcast it’s just a term that means legal representative, but they can be the voice of your loved one. So if you’ve got an issue and you’ve told the staff and you’ve tried to resolve this and they’re still not taking care of this, call your ombudsman. You can go to ag.georgia.gov and find out who your ombudsman is and have them come in, show them the evidence that you’ve accumulated and say, “Please help me.” So they can get involved and try to resolve the issue.
Schenk: Aside from calling the ombudsman, you can also file a complaint with the Department of Community Health. So what the Department of Community Health does is they’re in charge with basically at various intervals doing a survey, doing an audit of nursing homes, whether or not nursing homes that are receiving federal funding are following the federal rules and regulations of running a nursing home, so for example, making sure there’s adequate staff, making sure that the residents’ physician orders are being followed. They do random samples and that happens at regular intervals. But sometimes when there’s a complaint that is filed, sometimes they’ll send a surveyor over there based on that complaint and they’ll do an investigation based on that complaint depending on how severe the complaint is. So they’ll go out and they’ll interview people involved and they’ll issue basically a report and there possibly will be citations involved.
Smith: Yeah, and this is something we’ve talked about in the past as well, the different punishments that CMS or DCH may dole out to a nursing home can be everything from a request that they alter a certain procedure to a complete denial of CMS benefits, which would essentially shut the place down.
But barring that, and something important that we want to make sure you understand is that these are not necessarily, it’s not as though we’re giving you the steps you must follow one after the other, and the reason that I saw that is because we have time and time again stressed that there are some things that are better suited for DCH or an ombudsman. There are some things that might be better suited to what you might find in step number four, which are attorneys, contacting an attorney. So if you’ve got a situation where your mother or your father has a catastrophic injury, it’s not as though you have to contact DCH or an ombudsman before you move onto number four, which is contact an attorney, somebody like us.
Schenk: That’s right. So contacting an attorney is going to be important because of a whole host of reasons, the first of which is that the attorney understands things like statute of limitations, how long you have to file a claim to preserve it. The attorney knows case value, so in other words, whether or not this is worth pursuing in a court of law. An attorney is going to know if you’re getting stonewalled in regard to medical records. They know how to request those medical records and get them to you. An attorney is going to know how to put a facility on notice of a claim and therefore require, in Georgia, require them to hold onto evidence and not get rid of it. These are things that an attorney can do for you as they pursue and investigate a potential nursing home abuse case. So contacting an attorney can be very important as part of this process, and as Will said, these one, two, three and four are not necessarily what would happen in every single case. It’s just a general rule of thumb.
Smith: General overview, like guidance. General guidance is that letting staff know what’s going on, getting evidence, and then telling somebody outside of the nursing home, getting help from somebody outside of the nursing home.
Schenk: That’s right. So number one…
Smith: …Is let the staff. Make sure the staff knows.
Schenk: Yeah, number two…
Smith: …Is to get evidence.
Schenk: Number three…
Smith: Tell DCH or an ombudsman.
Schenk: Number four…
Smith: …Is contact an attorney.
Schenk: And that, ladies and gentlemen, fair viewer and listener, is the recommendation from us as of today’s date on the four things to do if you suspect your loved one has been abused or neglected in a nursing home. Those will probably serve you well.
What else did we want to talk about today? It looks like we have an article, this deals with a nursing home from Charleston, South Carolina. Donna Carpenia, daughter of Judith Ross, has filed a complaint against Diane Drive Operations and Genesis Healthcare for negligence in the death of her mother, a resident of a nursing home. Judith died of gastrointestinal bleeding and septic shock, and the crux of this lawsuit according to this article is the nursing home’s delay in recognizing the symptoms of gastrointestinal bleeding. According to the complaint, the estate of Ms. Ross alleges that the defendants, the nursing home, failed to immediately report her complaints and distraught behavior to a physician, failed to immediately call for emergency transport and failed to train and supervise the staff regarding the same.
And that, time and time again, you will see that with nursing home neglect claims. The actual original injury is not the cause or the basis of the lawsuit. It’s how the nursing home reacts to that injury.
Smith: And to clarify what Rob is saying is that it does not have to be the cause. It can be the cause, but it doesn’t require it to be the cause.
Schenk: That’s right. So in other words, the nursing home in this case, while she has gastrointestinal bleeding, I’m not sure it could be from a procedure from a hospital. It could be some biological reason that she has that. Either way…
Smith: It could be a pegged tube that came loose. It could be anything.
Schenk: Either way, that cause of that could not be based on the nursing home’s acts. The issue here is the fact that once you see a status change in a resident, once you see a resident either complain of intestinal pain, show signs like high fever, like spike in blood sugar, some type of observable, empirical sign that the resident is undergoing a change, particularly under distress, they have a responsibility to not only notify family but to notify physicians, to notify a medical provider, and if so, take her to the emergency room.
Schenk: So that’s going to be the basis of this case and that’s what the family of this individual that’s passed in this nursing home is going to have to do, is going to have to say based on the evidence that we have, which is the medical records and the testimonies of the nurses on hand at the nursing home, should they have done something sooner? And then importantly, even if the nursing home had acted sooner, would that have prevented her death?
Smith: Exactly. So that’s another question you have is that let’s say that you have two possible cases of negligence. Did they cause the original injury? No. Okay, once they found out, did they do what they were supposed to? No. Okay. But even if they didn’t do what they were supposed to, if you get that far and you go, “Okay, at least we have one of those negligence’s covered,” then the question is did that final negligence, is that the cause of her death? And if it’s not, then it doesn’t matter. So they could have been negligent in one or two ways, in two of two ways, but it still could be the case that at the end of the day, that’s not what caused her ultimate injury or ultimate damages, which in this case would be death.
Schenk: That’s right. So that’s what stuck out to me in this particular case is basically that the arguments that are going to have to be made in order to prove that the nursing home is liable. Moving to a different part of the country…
Smith: …But something that still resonates with what we just talked about, which is what are nursing homes supposed to do after an accident or an incident? And in this particular one, we’re in Buffalo, New York, where lawmakers are discussing proposed legislation called Ruthie’s Law in memory of a woman who – what happened to her? She fell and was injured?
Schenk: The nursing home failed to notify and accurately share details of her fatal injuries that led up to her death. Let’s see – the proposed legislation known as Ruthie’s Law in her memory requires nursing homes to notify legal guardians within one hour of an injury if hospitalization is required. The proposed law as written gives the county attorney the power to subpoena and review nursing home injury reports.
Smith: And this is something I fully support. I don’t know for the life of me why this isn’t standard throughout the country. We often get as a major complaint from potential clients the issue that the nursing home didn’t let them know what was going on. Now a failure to let you know what’s going on is not a link in the chain. It’s not proof of causation…
Schenk: …Of the injury.
Smith: …Of the injury. And that is something people confuse oftentimes. They’ll say, “Well Mom fell and later she died, and also they didn’t tell me about it, so I think that they’re negligent.” No, the causal link between her link and her death is not evidenced by their failure to tell you. However, I do think that requiring nursing homes to immediately within one hour inform guardians and loved ones will decrease injuries, ultimate injuries to residents because family members then are put on notice that the loved one has fallen, and they’re going to say, “Hey, have you taken her to the ER to check it out?” So it’s going to put the nursing home in a position where they’re going to be required to do more for specific instances of immediate injuries like failing or cutting or an altered mental status, so it can cut down on overall damages to nursing home residents I think.
Schenk: Yeah, so in other words, thumbs up to this proposed legislation.
Schenk: We throw two thumbs way up.
Smith: Yeah, way up.
Schenk: All right. For the record, we were giving two thumbs up apiece.
Smith: Two thumbs up apiece.
Schenk: Okay, moving on, this will be the last article I’ve got today. This is actually coming to us from Missouri. A nursing home patient dies after catching fire while smoking. So we have here 83-year-old Donna Chapman died after catching fire while smoking in her wheelchair at NHC Healthcare in St. Charles, Missouri. Chapman, partly paralyzed, was wheeled onto the nursing home’s patio and was left there alone to smoke a cigarette, and then caught fire. The fire department reported that she suffered third-degree burns as the clothing surrounding her ignited.
Smith: And this is one of those issues that encompasses a resident’s right to pursue happiness, to be a human, to do what they want to do. I can’t tell you how many times I had family members come into the nursing home and say things like, “Well we don’t want Mama smoking anymore. We don’t want you taking her out and letting her smoke.” Well I’ve got news for you. She created you and gave birth to you. She’s an adult. She’s cognizant so she’s going to do this if she wants to. But where you have an issue is in a situation like this where the resident has some problems, and here the resident is partially paralyzed.
Schenk: Because of a stroke, a previous stroke.
Smith: Because of a previous stroke. So my issue here isn’t that you were letting her smoke. She should smoke. I don’t care if a nursing home resident has cancer and the doctor said, “If you smoke another cigarette, it will kill you.” So what, right? You’re free to be as unhealthy as you want to be, and all of those family members who are shoving Big Macs in their face and getting congestive heart failure setup have no place to say, “Well I don’t want Mama smoking. It’s not good for her anymore.” Who cares? If she wants to, she can. But if Mama is partially paralyzed and may have trouble holding onto that cigarette, it is incumbent on that nursing home to have somebody stand there with her. Now it may be that there’s limited staff to take this resident out every single time she smokes, so it may not be that every single time that Ms. Johnson wants to have a cigarette, she can go have a cigarette because they would have to have somebody stand there and watch her just in case she drops it and can’t pick it up. But she should still be allowed. But absolutely, they should have had somebody out there watching her because she’s not…
Schenk: In this particular case.
Smith: In this particular, they should have had somebody watching her.
Schenk: This is a very tragic, sad, sad incident.
Smith: Yeah. And one of the last nursing homes that I worked out would not allow the staff to smoke on the grounds, and I think that’s a great idea, first of all, for any business. I don’t think staff should ever be allowed to smoke. If I owned any business whatsoever, even if it was a tobacco shop, I don’t want employees smoking.
Schenk: Man, when I waited tables…
Smith: Oh no, of course, restaurants…
Schenk: I had to have my cigarette.
Smith: But the only exception to this was residents were allowed to smoke, but when you took a resident out, and I’m thinking of a woman very distinctly who in my mind pretty much matches the issues that this woman had, because I can recall standing out with her in rain – we were protected from the elements from above, but in rain, sleet, snow, cold, hot, whatever, one of us had to stand out there with her.
Schenk: Speaking of smoking, oftentimes smokers, while doing their work, will say, “Hey, can I have a smoke break.” And I’m asking – I’m a former smoker, haven’t smoked in 14 years, but I’m actually going to require a smoke break from this episode because we have reached the conclusion of this episode, Episode 33 of the Nursing Home Abuse Podcast.
You can download or watch new episodes of the Nursing Home Abuse Podcast every Monday morning. They’re available on iTunes or Stitcher where you can download the audio or you can watch on our website, which is NursingHomeAbusePodcast.com or on our YouTube channel. We appreciate your time and attention and we will see you next time.
Smith: See you next time.
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