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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 episode 56 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are nursing home abuse and neglect lawyers in the state of Georgia and we are your hosts for this episode. As this episode goes to air, it is February 19, 2018. I have probably at this point have eaten at least 250 pounds, far more, far more than my body weight.
Smith: In chocolate? Or just food in general?
Schenk: In confectioner sugar conversation hearts.
Schenk: What’s interesting is I could bore you with some stats, but I’m going to make some up and I’m pretty sure they’re correct, like they make a billion pounds of it in the month of February. Their plants churn out like a million of them.
Smith: I don’t understand – like I don’t understand, like it has no value whatsoever. It’s not filling. It’s just candy. I hate candy so much.
Schenk: Here’s where I don’t understand you. Do you not eat dessert?
Smith: But dessert is filling. It has like the umami aspect to it. It’s fulfilling, it’s substantial.
Schenk: I guess. I don’t know when you became a Queen Elizabeth crown-type like…
Smith: No, to me, it’s the same. I eat food because I’m hungry. To me it’s like saying, “Hey, I’m really hungry. Can you throw me a peppermint?” That’s like what…
Schenk: See, that’s the opposite then. That would be my argument is. I’m saying the candy’s purpose is for flavor only. It’s not like, “Hey, I just got through with this incredible workout for the day at Crossfit. Give me some candy.” It’s like, “I’ve had a meal. I’m satisfied, but it’d be great to taste…” It’s like I’m explaining this to a non-human. It’s like K-PAX is my co-host for this show. Are you kidding me right now?
Smith: I hate candy. I just don’t like candy.
Schenk: But like you’re acting like you can’t comprehend that candy exists and people enjoy it.
Smith: Oh, I comprehend it. People like black licorice, which completely blows my mind, but I comprehend. I just don’t like it. I don’t appreciate it. I don’t accept it.
Schenk: Geez. That’s strange. But I think it’s interesting with the conversation hearts how they’ve changed throughout the years. It used to be like, “Hug Me,” or “Give Me a Kiss.” Now it’s like, “Text Me,” “Check Me Out on Instagram.” Do you have any idea what I’m talking about?
Smith: I haven’t seen a conversation heart in probably five or six years. I avoid them.
Schenk: Okay, but you understand the concept. It’s a little candy that has a little expression on it, and the expressions used to be old-fashioned.
Smith: Oh, I know what it is.
Schenk: Right, like, “Give Me a Hug,” “Say Hi,” “Can We Talk?” Now it’s like, “Text Me Back,” “Instagram Me,” modern times stuff, which is interesting.
Smith: That’s interesting. I don’t know if that’s true or not, but that’s interesting.
Schenk: It’s 100 percent true.
Smith: I don’t think a lot of people are going to both to see if that’s true, so I think you’re just saying that. I’m going to get some of these hearts just to see if they have changed over the year.
Schenk: I 100 percent – the only thing I’ve made up in this episode is they make a billion pounds of it and I’ve eaten 250 pounds of it. That’s not my actual body weight is 250 pounds. Those are the only false things that I’ve said.
Schenk: All right, so what’s the first story? Where’s the first story coming at us from?
Smith: So this is coming from Vermont and it’s coming from Burlington, Vermont, and what do they have there?
Schenk: A lot of coats.
Smith: A lot of coats. They have the biggest coat factory in Burlington, Vermont. I just made that up. I’m kidding. So the estate of an elder woman died at a Pillsbury Manor in Vermont, and they’re suing the facility. And essentially what happened was, and this is horrible, her head got trapped between the bedrail and an air mattress.
Schenk: So before we get into this, what is an air mattress?
Smith: It’s a mattress that has – it’s supported by air, and it’s main purpose is to help somebody avoid getting pressure ulcers. So it’s softer and it moves – it’s supposed to move with the resident as they go back and forth as opposed to a spring mattress. It’s a lot harder and doesn’t have as much give and is more likely to cause a pressure ulcer.
Schenk: And bedrails are exactly what they sound like.
Smith: They go on the sides.
Schenk: They go on the sides.
Smith: They go up and down. Some people have bedrails, some don’t.
Schenk: Okay. So go ahead. I’m sorry, I just wanted to make sure we’re all on the same page.
Smith: Yeah. So her head got caught in between the bedrails, which are these rails on the side of the bed that prevent her from falling out or getting out and the mattress, and it choked her to death and it killed her. So the family then filed suit, and what they note in the lawsuit, the facility was in violation of a number of Vermont state regulations as it relates to bedrails and air mattresses.
And among the violations were the height of the bed, the failure by the facility to reexamine the best type of bed conditions and insufficient staffing on the night that she died. A number of these violations were noted during a site visit five days after the nursing home resident death in a report filed by the Division of Licensing and Protection, which is just the specific state institution that Vermont has that checks out these…
Schenk: That regulates the facilities.
Smith: Regulates these facilities.
Smith: And it looks like the plaintiff here is going to try, I’m guessing, to sue for punitive damages, because one of the complaints is they acted with reckless, wanton and willful disregard for the rights of this resident, which to us, sounds like language that they’re going after punitive damages. I don’t know how successful they’re going to be with that. But it is definitely a potential that this woman died as a result of neglect.
First and foremost, bedrails are super dangerous, and I’ve always been torn with bedrails because there are – there are times where they’re super necessary because you’ve got somebody who is in a bed and they’re likely to fall off because they don’t know what’s going on and they’re moving around a lot, and some of these beds are so antiquated and won’t go all the way down to the ground. Sometimes the families don’t want the beds all the way down to the ground or the resident doesn’t, so it’s difficult, but what would be ideal in a situation like this is if you had the mattress itself all the way down to the ground as far as it went, so it’s all the way on the ground, so if this lady rolls out, she’s right there on the floor, and there’d be another pad or some kind of protective covering on the floor so she rolls over on the floor, she’s maybe falling a couple of inches, it’s not really hurting her, and then you don’t have bedrails. So there’s nothing for her to get her head stuck in.
So the question for me would be why didn’t they do that? And there could be a number of reasons. They could have really old beds that don’t go all the way down to the ground. That could be one of them. Other reasons are just indifference or laziness. Bedrails are not outlawed at all. As a matter of fact, bedrails, you’ll see in a lot of admission assessments, residents are required to have bedrails. I have never liked them. I never liked them because I think they’re a form of restraint, but I’ve also never liked them because they’re super dangerous, the same reason that cribs sometimes make me super uncomfortable if the slats in the rails of the crib are too wide that a baby can stick its head through. So I’m just not a huge fan of the types of bedrails that we have now, because they have slats and they have room for somebody to get stuck in, and I have seen residents with legs, arms…
Schenk: Call buttons?
Smith: Call buttons get stuck in there. Bedrails are super dangerous, and this woman, having dementia, not knowing what’s going on, got her head stuck in one and it killed her, and it’s horrible. It really is.
Schenk: And I think what’s interesting to note in this article detailing the allegations made in the complaint is that the facility’s ownership changed hands from John Larkin Incorporated to New Horizons Senior Living in May. In an email statement, Dan Covert, director of operations at New Horizons Senior Living, wrote that none of the individuals named in the lawsuit worked there today. He said the company has no affiliation with the previous operator. It’s like this is how it goes. All they do is they sell, they create shell companies. One’s a holding company and the facility pays rent to the holding company. That’s why a lot of times when we sue these facilities or when attorneys across the country sue these facilities for situations just like this, you have to name like 10 different defendants, and then you’ve got to sort out who’s who. Are these shells? Are we playing games? Are we playing the shell game or what?
Smith: Yeah, if you go onto the CMS website, NursingHomeCompare.org or is it dot-gov?
Schenk: I think it’s dot-org.
Smith: But it’s the government funded website that shows all of the information on nursing homes that accept CMS money, and you will – there’s an ownership section, and you click on the ownership section, and it always has a huge list of people that have a certain percentage in these facilities. And it really is one of the most aggravating aspects of suing these places because you’ll have exactly this. I just recently sued somebody in both Georgia and Tennessee only to find out, hey, the company in Tennessee earlier this year. Okay, what are you guys doing? You’ve got to cut out the head off the snake, and it’s always hard to find the head.
Schenk: Here’s something else in this before we move onto another story, but a death certificate for this individual says her injury occurred after an unwitnessed fall. The survey by the division of licensing and protection dispute that she fell, “the injuries seen by the pathologist in the examination were consistent with positional asphyxiation due to bedrail, not a fall. Her mattress had two overlays on it measuring at 6 inches in height.” According to the survey report, the gap between the overlays and side rails was 5 inches wide. The overlay is clearly causing an entrapment risk. “If the resident was lying near the edge of the bed or sitting near the edge of the bed, this would actually further widen the gap, posing a further risk of entrapment.”
Smith: And just to give you an idea of why this ends up happening, see this is what you have to understand. These nursing home owners are looking to cut corners and save costs. So what happens is you’ll have healthcare facilities, hospitals, ERs, other nursing homes that are shutting down, and they’re liquidating their property into cash. And so they’ll buy these various beds that were never intended for residents with dementia or confusion. They’re intended for people who have all of their wits about them, who are completely aware of what’s going on and are in a hospital. These are all hospital beds. And working in nursing homes, I have seen hospital beds older than I am that were never designed, were never designed at any stage of the design did they contemplate someone with dementia sleeping in this bed. But they’ll buy all these beds because they get them at a discount and they’ll just try to make them work, and it’s a shame. It really is because these beds are not meant for a lot of these nursing home residents. They’re dangerous.
Schenk: They’re dangerous.
Smith: Imagine is you were like, “I’m going to find something to put my kid in. I’ll find something that looks like a crib and that’s good enough,” that’s what’s going on here.
Schenk: So that’s a terrible tragedy and that woman was 95 years old.
Smith: Yeah. What a horrible way to finish out living to 95. And when was this? Last year, right?
Schenk: This was last year, 2017.
Smith: Think about all that this woman has experienced in her 100 years on earth. She was alive – she was born shortly after World War I, right? She experienced women getting the right to vote. She experienced the Civil Rights movement. She experienced the Great Depression. She experienced the ‘60s, the ‘70s, the Reagan era of the ‘80s. She experienced us going from a time when…
Schenk: Space flight?
Smith: Yeah, when we had, you know, front crank Ford cars to space flight to now we’re having driverless cars, and she exits this earth because some nursing home operator said, “Hey, look, I can get a bunch of these hospital beds real cheap for these residents,” and that’s what happened. I mean you can blame the staff all you want. It’s certainly – there’s something to be said about them not going around and making their rounds to make sure that this didn’t happen, but ultimately it falls on the nursing home owners because they paid bottom prices for crummy beds to save money, and this is what happens.
Schenk: So if you have an – audience member, if you have a loved one that’s in a nursing home and you walk in there and you see, if you see bedrails, ask questions. Say, “Listen, can this bed be lowered?”
Smith: Can it go all the way to the ground? Get your doctor involved. “Hey, is there anything…”
Schenk: “Are there pads that can go on the ground?” like those pads that you can get from IKEA that you can stand on when you’re doing your dishes? Can you get those surrounding the bed, lower the bed as much as possible? You have the right to go in there and talk to people about that.
Smith: If it were me and I had a loved one who was prone to potentially fall out of the bed, I would want it lowered all the way to the ground, take the bedrails off. I don’t want any bedrails, almost like there’s a mattress on the floor. I would prefer that then them being three or four feet off the ground. That’s enough to kill somebody, and if you’ve got a bedrail, well they may not hit the ground, but their head could get stuck and they could asphyxiate.
Schenk: Asphyxiate. And that’s the decision this nursing home made. She had fallen out of this bed, this 95-year-old victim had fallen out of the bed twice before in the previous few months, so they go, “Well, what’s the risk of her falling and hitting her head and getting a subdural hematoma and passing that way or asphyxiating in the bed?” and they decided they’d rather have her asphyxiate in the bed basically from the bedrail, and that doesn’t have to be that way. But like I said, we recommend that if you have a loved on in a nursing home that has bedrails to do everything in your power to have those bedrails taken away that doesn’t necessarily mean they can fall and hurt themselves. Try to mitigate the risk of fall without the use of the bedrails.
Smith: Yeah, absolutely.
Schenk: Yeah. Real quickly, I wanted to point out another case. We’re going to go out to Macungie Township, Pennsylvania. This is another case of elopement. 77-year-old Audrey Penn was discovered dead in a ditch on the side of the road in Lower Macungie Township, Pennsylvania one month after being reported missing from Woodland Terrace at the Oak Nursing Home. The Department of Human Services revoked the facility’s license for incompetence, negligence and misconduct. The facility is actively seeking an appeal and has increased safety measures throughout the building.
The real issue here that I want to point out before we come to a close in the episode is always that this is a tragedy, but this is why it’s important for a nursing to get all hands on deck once they realize that somebody’s gone is that the longer they wait to contact law enforcement, the harder it gets to find them because the search parameter increases.
It looks according to the agency that investigated, the morning of August 3rd, the date the individual was nowhere to be found, a staff member of Woodland Terrace noticed the woman wasn’t in her room but violated the home’s policy and waited 90 minutes to report there was a missing resident to a supervisor. This decision “dramatically increased the area they would have had to search and the difficulty in locating her” and that was according to the attorney that now represents them.
So you’ve got to think about that. Let’s say you waited 90 minutes. Depending on how mobile this individual was, they can make it 90 minutes if they walked two miles away.
Smith: Yeah. They could be a resident with dementia who was completely ambulatory, meaning they had no problems walking, or they could be a resident that’s in a motorized wheelchair that has – we had a resident like that in one of our cases. It wasn’t the reason for the case that we had, but he had a history of taking his wheelchair all the way into town at one point. So yeah, you wait an hour and a half, which is what 90 minutes are, they could be anywhere.
Schenk: They could be anywhere.
Smith: It’s a huge radius.
Schenk: Yeah. So in this case, if you have a loved one that’s in a nursing home that’s a possible elopement risk, just make sure when you walk in there, in a lot of nursing homes there are checkpoints you have to get buzzed in. There are alarms in the exits that alert people. If there’s some type of courtyard or whatever, the access to the outside is also alarmed. There are lots of things nursing homes can do to prevent elopement. In this instance, not only did they not do that but they compounded the problem by waiting 90 minutes before reporting it to law enforcement, which had a terrible effect in that this lady wasn’t found for several weeks later.
Smith: Yeah, and that’s what we talked about before, the things to look for in a nursing home, you know, the smell, the staff, the overall cleanliness, the friendliness of everyone there. Another thing to look for if you have somebody who is prone to elopement, whether or not they have cognitive issues, it could just be somebody who’s stubborn and wants to try to go into town all the time, walk through the nursing home. See how easy it is to get out of it. It shouldn’t be that easy because there are people there that are like large children that can’t be allowed free access to the outside because staff may not be able to have eyes on them 24 hours a day. And all it takes is for them to just a couple of seconds to go out of a door out into the parking lot and then they’re gone.
Schenk: That’s it.
Schenk: Speaking of that’s it…
Smith: That’s it for this episode.
Schenk: Yeah, stick a fork in this episode. We’ve reached the conclusion. As always, you can watch the nursing home abuse podcast on our YouTube channel or at NursingHomeAbusePodcast.com or you can check us out, the audio version, you can download the audio or MP3. Where can we do that at, Will?
Smith: I think that we can stop making such a big deal about Spotify at this point because it’s…
Schenk: I mean in general where can they get it?
Smith: iTunes, Stitcher, Spotify, anywhere that you listen to your favorite podcast, we’re on there.
Schenk: That’s right. And we hope that you’ve enjoyed today’s episode and we will see you next time.
Smith: See you next time.
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