Episode 41

What are the ways that nursing homes attempt to cover up abuse or neglect?

 

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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 welcome to the Nursing Home Abuse Podcast. This is episode 41 – “What are the Ways Nursing Homes Attempt to Cover Up Abuse and Neglect.” My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: We are Georgia nursing home abuse and neglect attorneys and we are your co-hosts of this episode. Lots of useful information contained in episode 41. We’re going to be talking about ways in which if you have a loved one in a nursing home or assisted living facility and you’re scratching your head, you’re suspecting neglect or abuse one way or another. Maybe your loved one’s losing a lot of weight in a relatively short period of time. Maybe they have unexplained scratches, abrasions or bruises that you can’t figure out why. Maybe there’s a bedsore. There are a couple of ways a nursing home is going to attempt to keep important information from you.

Smith: Yeah, and actually I want to kind of tweak a little bit the words we are using. There are ways in which they may attempt and there are ways in which it was covered up, perhaps not intentionally. But I guess we can jump right into it

Schenk: Yeah.

Smith: And this comes from, as I said time and time again, I like to point out I worked in a nursing home, many different nursing homes all across the state of Georgia, a lot of hospitals as well as a CNA. My dad did for almost 30 years and my brother did, and now he works in a hospital.

And so I would pretty much break it down into two categories – ways in which nursing home abuse and neglect, especially neglect, may be covered up. One is intentional and one is unintentional. And when it comes to intentional, there are two different players here. So there are the individual staff members, the CNAs, the LPNs who are usually the floor nurses or sometimes RNs who are the floor nurses – they’re the ones passing out the medicine, doing wound care treatment a lot of times, doing basic bandage care and treatment. And then there’s the facility itself, which can include the director of nursing and the administrator.

So on the low level, on the people in the trenches, the CNAs and the LPNs, quite simply they may make a mistake and drop somebody, forget to put a bedrail up, forget to change somebody, or even in cases of intentional abuse, they may be the one that strikes the resident, and then they don’t pass that up the chain of command. And quite simply, they may just lie about what happened. They may forget to put a bedrail up and a resident falls out of bed, and then they see this. They see the resident up, put them back into bed, put the bedrail up and then say, “Hey, I don’t know what happened. I’m at a loss.” And so then the facility can do an investigation and they can be like, “Well we have no idea what happened.”

Another way that the staff can intentionally cover things up is through documentation. So everyone who is involved in the healthcare team in treating and helping the residents is involved in documentation of the resident, so whether it’s the input of liquids and measuring the output of urine, measuring how many times the resident has had a bowel movement, if lower level staff like the CNAs and the LPNs forget to do this and that leads to a situation that harms the resident – for example, residents who haven’t had bowel movements within 72 hours or three days have some sort of medical interceding, because that is not healthy and it’s a possibly sign of an impaction. So imagine that the CNAs haven’t been keeping track of the bowel movement, and then at some point, the doctor or a higher-up nurse discovers, “Hey, this person is getting sick and we think they have an impaction,” the CNAs may literally go back and write in the documentation and change the documentation of this person’s medical records. It happens and it happens, unfortunately, many times, because that’s all that they need to do.

On a bigger facility-wide picture, it’s really the same kind of thing, but it’s the director of nursing or the administrator dictating that they take these actions like, “Hey, I want you to go through and make sure bowel movements are put in place in these documentations. I want you to go through and make sure that all these charts have been backfilled,” or “I want you to go through and hide evidence.” You’ve got to understand that these people are worried about getting in trouble. They’re worried about getting sued. And so it’s not really anything for them. They have access to all the records. Nobody is really going to know that it happened, and they can go back through and change medical records.

And that’s why the more that we move to systems that are computerized. Computerized systems can time out the ability of people to change records, and when records are changed at a later date, it notes that it’s a later date. Unfortunately the vast majority of nursing homes that I’ve looked at, at least 15 years ago, essentially you had a three-ring binder with paper in it, and you would go through and write in it, and I have seen many times CNAs and nurses go through and backtrack and write things in. And the facility, again, the facility can either be involved in that or not involved in it.

Now as far as unintentional cover-ups, it’s still covering up the negligence that occurred, but it may not be specifically to prevent people from finding that out. The biggest one is charting by exception, and we’ll have to have my brother, Clay Smith, on here sometime to talk about this type of behavior.

Schenk: Clayzeriah.

Smith: That’s right. Clay’s an RN. But charting by exception is where they simply go through the medical records and they put the same thing down every time unless there is a major change in the person’s medical condition, so there could be negligence going on in the sense that this person is malnourished or is not getting enough liquids, but because people aren’t paying attention, they’re just putting the same thing through every time, so when you go through and look at the medical records, it reads as though they’ve been getting liquids and they’ve been having a normal output, but they haven’t, although it’s not intentional. They’re just being lazy about it. But so that’s basically the ways in which they cover it up.

Schenk: Yeah, we’re in the process of litigating a case in which the nursing home records, every two hours indicate that comfort measures or repositioning was provided, but it never indicates which comfort measures were provided, which could be fluff a pillow or it could be reposition the body. And so we’re having a spectacular fight about that with the nursing home about that with regard to having to depose and having to speak to everybody that handled or cared for our client about, “Okay, it says here at 2 p.m., 4 p.m., 6 p.m., 8 p.m., comfort measure provided – what does that mean? Were you charting by exception? Was there even anybody in there? Were you just hitting the button to do this over and over again? What is it?” Sometimes the only thing you can do is just sit these people down one RN at a time and get them under oath saying, “You know what? I don’t recall or this is an instance in which I just hit the button.”

Smith: Yeah. Absolutely. And you’d be surprised at how quickly people will tell on themselves. If they’re on a deposition and they’re being videotaped and there’s a stenographer there and a bunch of attorneys in suits and somebody says, “So be honest with me. Did you ever document something that you didn’t actually do?” I can imagine being a 24-year-old CNA, I probably wouldn’t have been able to hold it together.

Schenk: Yeah. Okay. Segueing out to Des Moines, Iowa, for the next story we want to talk about, this is actually quite sad and we always talk about the possibility of there being an evil guy with a mustache that he’s twirling in the background somewhere. I think that might be a result of that. But this is due to budget cuts, the Iowa long-term care ombudsman has eliminated the agency’s second-largest expense outside of salaries, and that is in-state travel to Iowa nursing homes, which cost $65,000 to $85,000 annually. The long-term care ombudsman staff visit residents in nursing homes and assisted living centers to investigate complaints of abuse and neglect and provide training for care facility workers.

In-person visits, which the budget has now been eliminated, allows staff, the ombudsman staff to address complaints directly. However for now, the ombudsman can only rely on telephones and technology to address future reports, or they can be – which I envision that ombudsmen in Iowa now are going to be like teachers, where they’re going to pay out of pocket, the gas, travel and lodging, to go visit these places, because I think if you’re an ombudsman, you’re a special breed of nice. You’re like a teacher.

Smith: You’re doing it for a reason.

Schenk: You’re doing it for a reason.

Smith: You’re not doing it for the money.

Schenk: So just – Iowa’s going through some terrible budget issues with regards to the Department of Aging and Long-Term Care Ombudsmen, so here it looks like with the Department of Aging, which employs eight regional ombudsmen, their budget went from 1.3 million from state and 400,000 from the federal was cut to a total of 500,000. So the Department of Aging got drilled. And then with regards to the Department of Long-Term Care Ombudsmen, 82 percent of the Iowa Ombudsmen budget was consumed by salaries. They eliminated the second-largest expense, which was $85,000 for travel.

Long-term care ombudsmen in Iowa made 700 visits to nursing homes in the 2015-2016 fiscal year that were in direct response to specific complaints of poor resident care and violations of residents’ rights. Regional ombudsmen also participated in 99 health and safety inspections for care facilities, which are conducted by the Iowa Department of Inspections and Appeals. There are roughly 53,000 Iowans living in 850 nursing homes and assisted living facilities. And now you’re talking about I think taking away the teeth of the ombudsmen program in Iowa by making it impossible for them to actually conduct on-site investigations.

Smith: Yeah, it’s a real shame. The article was stating there are 53,000 Iowans in 805 different facilities…

Schenk: 850.

Smith: …850 different facilities. We’ve got to get out there and mobilize the elder vote because they are constantly being neglected in different states.

Schenk: I mean there’s so much importance in the actual on-site investigations because I mean if you’ve ever had the chance to read any reports by the ombudsman reports by the Department of Community Health, anytime when somebody goes out to investigate, you might be investigating a fall, you might be investigating an issue of dehydration, you might be investigating an issue that the food is cold. And then once you’re there and you lay eyes on the facility, you can see that, okay, this fire extinguisher is from 1979. That is putting people in a certain level of danger, the entire residence in danger. You can see that the doors aren’t set with alarms. There are other issues that you would only know if you set foot in the facility and not only interview the staff on the phone. There’s a certain smell test that you can conduct as an ombudsman when you go to facility, and I feel like there’s less worry on the part of a nursing home if the ombudsman is 30 miles, 40, 50 miles away, and you never have to worry about that person setting foot on your property.

Smith: Oh yeah, absolutely, because you can walk into a nursing home – we were one in Oakhurst – you walk into it and you can immediately tell yourself there’s negligence.

Schenk: Yeah, something you can smell it in the air.

Smith: Yeah, this is not a good nursing home.

Schenk: Yeah, so ombudsmen do the Lord’s work, and it’s a shame that Iowa is having trouble budgeting that. Laws are made by people and the people have interests, and the legislature of Iowa, the state legislature of Iowa, there’s a reason why this is getting cut as opposed to something else. And the nursing home industry is a strong lobby.

Smith: Yeah, it’s a special interest.

Schenk: And this is where I was saying about the twirly mustache. I think there’s something amiss with that much of a budget being slashed.

Smith: Yeah, because in consideration of what we could – they’re sitting around going, “What can we cut here?” There is pressure from the industry, and they’ve got lobbyists saying, “Hey Jim, hey Todd, hey Susie,” – all I assume Iowa state legislatures.

Schenk: Becky Sue.

Smith: Yeah. “Hey, listen guys, here’s something you can do. This will solve your problems. Let’s stop having ombudsmen travel all the way out to these nursing homes. Let’s do that instead of cutting – I don’t know – subsidizing deep-fried Twinkies at the state fair,” which is something they can do, and I’m assuming those are subsidized.

Schenk: I like deep-fried Twinkies.

Smith: I’ve never had one.

Schenk: I was actually in, I don’t know, somewhere in south Georgia at a fair that celebrates pigs, some kind of yearly pig fest. And they had deep-fried everything – they had deep-fried Twinkies, deep-fried Oreos, deep-fried like, what do you call it? – like they deep-fry anything. I thought that was interesting. I never had that. That was actually the first time I ever had a funnel cake. And now I eat funnel cake like, you know what I’m saying, like for breakfast.

Smith: Helen has a lot of fun.

Schenk: Helen, Georgia.

Smith: Helen, Georgia, that’s where I’m from. Sautee Nacoochee actually.

Schenk: So anyways, we hope for the best for Iowa.

Smith: Yeah.

Schenk: We hope that they get their things together. So Will, can you take us to the next story coming out to us from Tucson – how do you say that? – Tucson, Arizona.

Smith: Tucson, Arizona.

Schenk: How do I say it?

Smith: Like you just had a stroke – Tucson, Arizona. Out of Tucson, Arizona.

Schenk: Oh, you’re right. It’s Tucson. I don’t know what I was thinking. Well could you imagine that Tucson is spelled with a C?

Smith: Yeah, it is weird. It is weird.

Schenk: That might be the first I ever recall seeing the word “Tucson” written.

Smith: Interesting.

Schenk: Is that like Navajo? Like what is that?

Smith: I mean how do you spell “thoughtful?”

Schenk: I don’t know where you’re going with that. Are you trying to say that I’m not thoughtful?

Smith: No, like I’m saying just because you have letters in words doesn’t mean they should be there.

Schenk: I mean I get that. I’m just saying like…

Smith: Where’s the G in “thoughtful?”

Schenk: I see. It took a long time to get there, but we got it. So what’s going on in Tucson?

Smith: So here we’ve got Brianna Burdow of Tucson, Arizona. She’s charged with two felonies after state investigators said that she assaulted two elderly residents at The Villas at Haughton Senior Care Home. According to the reports, Burdow is accused of causing physical injury or abuse to an 84-year-old Villa resident, and the assault of another resident who was 94 years old.

The CEO of the senior home responded to news reports of the incident with an email and says that, “Look, we care for 90 residents. We do this 24/7. It takes a while to get statements from all of our employees and all of our residents, and that’s why it took us a little while for us to report this abuse.” And she gives this really veiled threat at the end and that is she says, “Look, we received fingerprint clearance from the state before somebody works with us. And so from our part, once we get that clearance, if there’s nothing in there, we hire that person if they meet all the other qualifications.” And then she gives this really veiled threat that, “I can’t control what you report. I can respond if you report anything other than proven facts, and if any implications of wrongdoing are made on our part that are not proven facts, including whether or not something was done in a timely manner, and we will legally pursue anyone reporting or repeating any false statements or intended implications.”

Schenk: I would read that in a closing argument.

Smith: Well you know, here’s the thing. You’ve got to remember if the nursing home has done everything it can, if they’ve got fingerprint clearance and they don’t have any proof that this person committed abuse in the past, I mean there’s a limit to what they can do. They can’t spend thousands and thousands and thousands of dollars hiring private investigators to look into every aspect of their employees. I mean at some point, they’ve done what they should do, and if an employee decides they’re going to do something unlawful, it’s not really the nursing home’s fault at that point.

Schenk: I agree with that, but I’m just saying…

Smith: Understand I’m not taking up for the nursing home.

Schenk: I just don’t like the wording where you’re threatening the reporter.

Smith: Yeah, yeah. Absolutely. That seems really passive aggressive.

Schenk: And just to let you know, Will, and to let the viewers know, that Tucson is from the Spanish name of the city Tucson, and it’s derived from O’odham, which I guess is a Native America tribe, Cuk Son, which means “at the base of the black hill,” a reference to a basalt-covered hill now known as Sentinel Peak, also known as “A” Mountain. Tucson is sometimes referred to as The Old Pueblo. So if you really want to get down to it, I was pronouncing it correctly from the original Spanish derived from the actual native name for it. All right, and so that takes care of the etymology, right?

Smith: Etymology.

Schenk: Etymology of Tucson, Arizona.

Smith: Tucson, Arizona.

Schenk: Tucson – you know, look – if you don’t like to listen to this podcast and you don’t like to watch it and you prefer to read the transcript of the podcast, the transcript of the podcast is always available on our website, which is NursingHomeAbusePodcast.com. And Will and I do not do our transcriptions. We actually – Jean, our producer hires… Who is it? It’s a guy named Dennis. A guy named Dennis is hired to listen to me and Will on this podcast and write the things that were down into a transcript, and he’s going to have a good time on this one trying to get Tucson, trying to get how to spell O’odham. Just remember, I’m talking directly to you, guy that – Dennis – the person that transcribes this episode, that you can go to the Wikipedia page for Tucson, Arizona, and get the correct spelling for all of what we’ve been saying. That’s the first time I think I’ve ever directed anything to the person who transcribes the episode.

Smith: This is to you, Dennis.

Schenk: This is to you, Dennis. Okay. Anyways, our next story is out of – where are we coming from? We’re coming from West Duluth, Minnesota. So – lawsuit settled against a nursing home after they allowed woman to disappear and die. So this is a tragic case of elopement here.

Mark Gerard received justice for his 73-year-old mother Dale Gerard, who in 2014 was found dead nine months after wandering from the Wesley Residence Nursing Home in West Duluth, Minnesota. The nursing facility admitted they were negligent in allow Dale Gerard to leave their facility as they knew she was a wandering risk, and still neglected to seek precautionary measures such as a Wander-Guard. The lawsuit was set to be tried in front of a jury earlier this month, but the company settled in court, likely deciding a jury would not look favorably on this case, and I think they’re absolutely right. The settlement was an undisclosed amount – I guess it was a confidential settlement, but what are the facts here? Let’s see.

Smith: It’s absolutely horrible. So she wanders away from the nursing home and she was at a risk. And we’ve talked about the different risk assessments that nursing homes do – if you’re a full risk, if you’re a bedsore risk. Another one is an elopement risk. She had dementia and aggressive behavioral problems. She was at risk for wandering, so much so that she was required to be accompanied both inside the facility and outside of the facility, and wore a device called a Wander-Guard. It’s like an electronic bracelet that people have for home arrest where it goes off it you go out of a certain area, if you go off the front door or if you go off somewhere like that, it’s going to go off.

So she disappears from this residence, and they don’t find her for nine months. Now she didn’t survive for nine months. She probably died that night because nine months later, they found her mummified body stuck in a fence. So this woman, she wandered out from the nursing home, and I am sure within 24 hours if not even less than that, she was probably dead. She couldn’t feed herself. She couldn’t find water.

Schenk: This is truly horrific.

Smith: Yeah. So she got stuck in a fence and died.

Schenk: So we’re very happy to hear that the family of the Gerards, the Gerard family…

Smith: And what they had done is – sorry, I forgot to point this out – is that they didn’t put a Wander-Guard alarm on every door, so she found the one door that didn’t have it and slipped out.

Schenk: Awful. So we’re glad that the Gerard family has received at least some sort of justice for this case for negligence of the nursing home. And I think that actually does it in terms of topics for us to discuss today on the podcast. Just to let you know in case you didn’t already, the Nursing Home Abuse Podcast is available for download on Stitcher or iTunes, wherever you get your podcast from. We are also available to be watched – you can see us on the YouTube channel or you can watch us at our website, which is NursingHomeAbusePodcast.com, that is NursingHomeAbusePodcast.com. And with that, we will see you next time.

Smith: See you next time.

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 on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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