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. 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 law in the state of Georgia. We’re coming to you from our offices in Atlanta, Georgia, specifically the office library affectionately known as The Dungeon.
If you are new to this podcast, we are in fact a video podcast, meaning there are several ways for you to consume each and every episode. You can either listen to this podcast on iTunes or Stitcher where you can subscribe and be sure to leave a fantastic review for us or you can actually watch us, you can see our pretty faces on our website, which is NursingHomeAbusePodcast.com, again that’s NursingHomeAbusePodcast.com, or you can check us out on the YouTube.
Smith: On the YouTube.
Schenk: On the YouTube, yeah. Ordinarily I would bypass the pleasantries with my co-host, Will, because he typically does not respond to the question, “How are you doing?” as any other normal human person would do, but today, I’m actually going to try to change things up a little bit, and I will ask, Will, what is your current mood? How are you doing today?
Schenk: Excellent. As elaborative and helpful to fill time as always. So what Will’s brief and pithy response means is that he wants to get right into the content today.
Smith: That’s right.
Schenk: So today we are going to be talking at length about the issue of understaffing in long-term care facilities, which has become a problem. Before we get into that, I want to draw your attention, the fair listener or viewer, the consumer, why we are talking about this today. This is an article I found quite awful, but unfortunately quite typical.
This is a nursing home out of New Jersey, but the story is from New York from late last year. This is family of an elderly Alzheimer’s patient says photos taken inside Woodcrest Health Center in Woodford, New Jersey, show their mother was left to sit in her own feces with excrement smeared across her face. The disturbing allegations of neglect are part of a lawsuit against Woodcrest and its parent company, CareOne, a New Jersey nursing home operator with dozens of facilities across the Garden State.
“Facilities like this should not be allowed to take care of people,” said Susan Baines, the nursing home patient’s daughter. “Every time we went there, it was another issue,” said the patient’s son. “She wasn’t being fed. She had fallen and she was covered head to toe in feces.” And it says here the family say that understaffing is the primary reason their grandmother ended up soiling herself. Her adult children believe nursing aides failed to answer her calls to go to the bathroom, so she may have tried to wipe herself, inadvertently smearing feces on her face. They also contend she broke her hip trying to get to her bathroom when nurse aides failed to answer another of her calls.
In terms of the size of this facility and the number of facilities that the overall parent company operates, it looks like they have served over 2,000 residents in the last five years. The CMS, which is the Center for Medicare and Medicaid Services, has provided this particular facility one out of five stars due to multiple problems found by health inspectors. So you have a nursing home facility that allows its patients to soil themselves because they don’t have enough, purportedly, don’t have enough people. That’s a sad thing.
Smith: And I can tell just by listening to the description of the place that it serves 2,000 residents that it is a for-profit corporation, and this is important because we touched on this briefly a couple of episodes ago that there was two types of nursing homes – not-for-profit and for-profit. And this is just… It’s another signal that for-profit nursing homes are a huge issue.
In a recent study by the CDC where they looked at… It was review – the CDC did a review of 82 independent surveys and studies of for-profit and not-for-profit nursing homes, and they found out that not-for-profit nursing homes, unlike this nursing home that we’re talking about that serves 2,000 people. These not-for-profit facilities had higher quality and more staffing, and that led to lower, a fewer number of government deficiencies, less cases of neglect, less cases of bedsores, of falls. It overall decreased in risk.
And one of the reasons for this is when you have a for-profit corporation, it is constantly looking at ways to make money. So they will do the bare minimum in staffing.
Schenk: And this is not something that you have the typical bad guy with a twirly mustache with a top hat tying a lady to the train tracks in terms of this is an evil intent. That’s just how a company operates. The goal of the company is to make sure it gives dividends to the shareholder.
Smith: Yeah, I’ve said this time and time again. Pigs get fed, hogs get slaughtered. It’s okay to be a pig. It’s okay to make a profit. There’s nothing wrong with that.
Schenk: It’s the American way.
Smith: We live in a capitalistic society. I would expect nothing else. But when you put profit over person, when you don’t consider the impact that short staffing has, understaffing has, then you become a hog and that’s what a lot of these places do. They, number one, don’t pay their staff enough, and I’ve said this in a couple of other episodes – this is one of the hardest jobs out there. I did it for eight years as a CNA before I became an attorney. It is one of the hardest, physically demanding, emotionally draining jobs that you can have. As a CNA, you are on the front line of all types of human interaction, whether it’s you’re being attacked by a resident, you’re dealing with all kinds of bodily functions – it is a very difficult job. So when you don’t pay people enough, you’re already not pulling in the best quality of staff, but then people just decide not to come in or people get sick and they don’t come in and you end up having maybe two CNAs for 20 to 30 residents, and that’s unacceptable.
Schenk: That’s right. So you have, from a corporate standpoint, not wanting to pay to have the bare minimum of people you need to actually run the facility, but due to the type of work it is, you have people calling out, you’ve got people quitting, you’ve got turnover and you’re going to end up with understaffing.
Smith: And you know, we talk about, and Rob just said this and I understand where he’s coming from that there’s not some individual twirling a mustache just saying…
Schenk: Tying the maiden to the train tracks.
Smith: But at the same time, these administrators and these corporate officials know what’s going on because they’re sued in these cases and they hear the facts of the case, that this individual was left to sit in her own feces for hours and hours on end, and yet they decide to still, instead of spending more money on staffing, still why not roll the dice, because maybe there’ll be an arbitration clause. Maybe the family won’t sue.
Schenk: Maybe the family does not know that they can sue. Maybe the family doesn’t know that what’s happening is abnormal. According to this article, they do, but some families think that’s par for the course.
Smith: And even if CMS docks them and gives them one star, maybe a lot of families don’t even know they can go to Nursing Home Compare and look at the CMS ratings of these nursing homes. So for whatever reason, they’re looking at the things that they have done and allowed to happen and are saying, “Well in the long run, we’re still saving money by doing this,” because it’s not going away and it’s only getting worse in these for-profit corporations.
Now understand something that I’m not saying that this doesn’t happen in not-for-profit facilities. We have cases against not-for-profit facilities. It’s just a shame that corporate greed in these cases is hurting the most vulnerable of our society, which are the elderly.
Schenk: And as a CNA in your experience, tell me what happens when you would go to work and you would be the only guy on the shift or there wasn’t enough people on that shift – what happens at that point?
Smith: I’m not going to mention the name of the facility because I think they’ve been investigated enough times already, but when I first started working, I worked at a facility which was probably one of the worst facilities I’ve seen in the 16 years that I’ve dealt with nursing homes, both as an attorney and as a CNA. And there were times that I would go there and quite literally, for a couple of hours, would be the only CNA on the floor.
Now what that means is I’m the only person on a floor of 30 residents who can change them, who can bathe them, who can feed them, who can provide, who can clothe them, who can provide that immediate care that they need. And so when you have a situation like that, what are you going to do? You can only do what you can do. These CNAs, oftentimes, yes, sometimes these CNAs are the problem, but at the end of the day, the problem comes from the brass at top because they’re saving money and there’s nothing you can do as a CNA.
Luckily I think that the majority of people who work in these places are really good people and a lot of times, we would have our floor nurses or the charge nurse – I’ve even seen a director of nursing, a DON, get involved and help the CNAs because somebody didn’t show up for work or we were short staffed.
I will tell you the only time we ever, in all of the nursing homes I worked at, the only time we ever had plenty of staff was when we were getting a state inspection.
Schenk: That’s all hands on deck.
Smith: Yeah, which they say that there are supposed to be surprise inspections, well clearly they’re not, because every time state would come, all of a sudden we’d have at least one extra person.
Schenk: Right. When you have one person taking care of upwards of five, 10, 15 people, 30 people, you’re not able to respond to the call button. You’re not able to reposition a resident that is at risk for a bedsore. You’re not able to do these things at intervals in which they should happen, and these might lead to a serious injury the first time they’re neglected, but after the second, third, fourth time, maybe it goes into a second shift or third shift where somebody hasn’t been turned, where somebody hasn’t been cleaned, and then you get into the risk of serious and grave, life-threatening injuries and complications.
Smith: Yeah, absolutely. Over time, it’s not like this would just happen once. It’s a pattern of understaffing. Understaffing is, in my mind, in my experience, understaffing is the root cause of the vast majority of negligence that occurs in nursing homes. It is absolutely the number one factor in negligence.
Schenk: And you used the phrase “pigs get fed, hogs get slaughtered.” I can now say that I’ve heard you say that at trial. I’ve heard you say that at mediation. I’ve heard you say that on the phone. We’ve broken into a new medium of you using that phrase.
Smith: Well you know it’s an old Southern phrase that my dad used to say, and he was actually a floor nurse in a nursing home. And I think it captures the real issue with corporate greed, which is look, nobody’s saying that you can’t make a profit. Make a profit. Reform the industry. Let’s really streamline it and make a profit and make everything better, but when you allow things like that what happened in New York, New Jersey to happen, and it doesn’t prompt you to change your practices, then you’re a big, fat hog that needs to get slaughtered, whether it’s through government intervention or people exercising their Seventh Amendment right and taking you in front of a jury of 12 people and getting a verdict. Something needs to happen.
Schenk: So you mentioned your dad was a floor nurse. This is actually a good time to segway into – why don’t you tell us, Will, take us through the types of staff that a listener who has a loved one who they’re thinking about putting in a nursing home or already have one, tell us who would they see on an average visit. When they go in, who’s working? What are they doing? What are their positions?
Smith: Right, and that’s a good question because it can be a little confusing because in my experience, pretty much everyone, and many times including housekeeping who works in the nursing home, wears scrubs. So you may walk in and you see all these individuals in scrubs. Well who does what? Who do you talk to? And what can you expect from each of them?
First and foremost, you have the CNAs, which is a certified nursing aide or assistant. When I first went to – I don’t want to call it school – when I took the CNA class back in 2000, it was two weeks long. We took two weeks, one of which was on the floor doing clinicals, and basically after that, you became a CNA. Currently it is between a four- to six-month course now. It’s a lot longer. It’s a lot more involved, and that’s good.
Schenk: That’s what it is now.
Smith: Yeah. Now you can’t take a two-week course like I did, so it’s a lot more involved now. But basically the CNA does everything like you would do for yourself. So anything that you can’t physically do for yourself, like go to the bathroom, brush your teeth, get dressed, get in bed, stand up, eat, any of these things, that’s what a CNA does.
So the CNAs are assigned a small group of rooms, and that CNA will be responsible for those residents. So when I get into work as a CNA, depending on what time it is, I may have to get those seven or eight residents up and get them dressed, brushed their teeth, comb their hair and get them into the dining room, get them ready to eat. Then afterwards, I will take them to the bathroom. Anytime they need to be changed, that’s what I do. Anytime they need to be repositioned, that’s what I do. They need water, they need something to drink, they want a snack – the CNA is the backbone of the nursing home. They’re on the frontlines.
Above them you have the floor nurses. Typically a floor nurse is what’s called a licensed practical nurse. An LPN is an 18-month course where you’re a nurse.
Schenk: And that would vary by state.
Smith: It varies by state, of course. I’m talking about in the state of Georgia. The LPN is a nurse who is capable of giving shots, cleaning wounds, passing out medication. For the most part, the elderly have a tremendous amount of medication, anything from vitamins to painkillers that they’re taking. The vast majority of the time that floor nurse is passing out medicine. So he or she, in my dad’s case – he, would have a med cart and it’s got all the medicine for all the different rooms. So nursing homes, there are a couple of different floors – there may be two floors, three floors, and one charge nurse will have one group of rooms on a floor. They’ll have maybe 20 or 30 residents. And what he would do would be to start at the top and start passing out medicine, and that takes up… They probably do about two of those a shift, and that takes up the cast majority of the time.
But the floor nurse is also somebody who can respond to minor emergencies, who can do minor medical evaluations. Both CNAs and floor nurses take vital signs. The floor nurse is also somebody who can do nail treatment, to cut fingernails. CNAs do not cut fingernails. It gets a little complicated in the elderly, so CNAs don’t do that, but floor nurses and above do. They can do wound care as needed and they can answer questions for the family.
Above them, you have a charge nurse, and that’s typically either a senior LPN or typically it’s an RN, and that’s a registered nurse. Registered nurses have everything from an associate’s degree to a BSN, which is a bachelor’s of science and nursing, and they are doing a lot of the paperwork. They’re making sure that the ADLs are filled out correctly, which are the Activities of Daily Living. They’re making sure that the medicine is being charted properly, that vital signs are being taken. They’re overlooking everything, and as a nurse, as an RN, they can respond to minor medical situations.
I’ve seen charge nurses jump in the fray and help out when understaffed both on the CNA level and also help pass out medicine. You will see seven days a week, you should see a CNA, a floor nurse and a charge nurse.
Schenk: That’s what I was going to ask – on a typical shift, when you walk in to visit your loved one, what positions are going to be walking around doing things and who can you interact with?
Smith: 24/7 – CNA, 24/7 – floor nurse, and in the vast majority of cases, the charge nurse should be at the facility as well, so you’ve got those three individuals. And I would suggest, first and foremost, that you get to know the CNAs, because they are the ones that are with your loved ones on a constant basis. They’re the ones that your loved ones get to know very intimately, because as you can imagine, you have to get to know these residents very well. You’re taking them to the restrooms. You’re giving them showers.
Schenk: And why do we recommend that we get to know the CNAs because you as a family member, you’re on the frontline to protect your loved one against neglect and abuse – so the more you interact with the people who are taking care of your loved one day in and day out, that are doing the most amount of interaction with your loved one, the more they know you, the more they see you coming in, statistically the less likely it is your loved one will be neglected. That’s a sad truth but that’s how it works.
Smith: Yeah, absolutely. The squeaky wheel gets the grease. And that’s a very horrible way of putting it, but the fact of the matter is the more you’re involved, the more it gets the staff involved, because we’re dealing with understaffing already. Does that mean that it’s more likely somebody is going to get neglected? Maybe. But for you and your family, the best thing you can do is get to know those CNAs. They can tell you what’s going on.
Schenk: Ask questions.
Smith: Ask questions.
Schenk: When was the last time my loved one was turned? What medication is she getting now? Did you make sure you administered it?
Smith: When was the last time he or she had a bowel movement? Have they had one in a couple of days? Very important questions – but you know, generally you’re going to deal a lot with the CNAs and you’re going to deal a lot with the floor nurses.
The director of nursing is the next step up from the charge nurse, and this is by and large RNs, people who have college degrees in nursing, and they oversee the entire healthcare staff nurse down. They’re not overseeing the doctors necessarily – they’re working with the doctors, with the geriatric doctors – but they’re the ones that are dealing with all the administrative, regulatory and healthcare management issues that come up.
They’re not going to be there 24/7. They’re typically there during the workday, five days a week. Sometimes they’ll come in on the weekends, but by and large, they’re administrative and there during the work week during the workday.
And above that, you have the administrator who is… I have seem administrators who were nurses, but that is not a requirement.
Schenk: So we see… Hopefully we can edit the sound of Will karate chopping his microphone.
Smith: Well you know, it’s too big. Anyways, so the administrator, yeah, they’re kind of the CEO of the nursing home, but you will probably never – you won’t really interact with the administrator very much. They’re the ones that are overseeing the actual facility from healthcare regulations to state regulations to dealing with CMS. They’re not really involved in the day-to-day medical management of your loved one.
However, they are responsible for everybody below them, so if you’ve got an issue, you definitely want to take it up with the administrator if you’re not getting help at the lower level. I would start – chain of command always. Even though you’re not in that chain of command, it’s better because you’re going to get a lot more assistance if you start with the CNA or the charge nurse, start with the CNA or the floor nurse at the very least, and then go up to the charge nurse. If that’s not working, go to the DON. If that’s not working, go to the administrator. And if that doesn’t work, then you might just need to call the Department of Community Help.
But that’s who you have from the CNA, the floor nurse, the charge nurse, the DON and the administrator. That’s who you have in that chain of command. You have after that ancillary positions from housekeeping to dietary to physical therapy to people who do activities. There are people who sometimes volunteer, sometimes paid, whose main job is to involve the residents in activities, whether it’s bingo, whether it’s minor exercise.
Schenk: And I feel like if you’re considering placing your loved one in a long-term care facility, I think that’s one of the – aside from the general things you would look out: is it clean, does it smell good, does it look like the staff are there, does it look like the staff are engaging? – I think that’s a good indicator of quality when you do see somebody in there playing guitar for the residents or bingo going on or the residents are engaged in activities that are not just watching television.
Smith: Yeah, the last nursing home that I worked at that was actually the last one my dad worked at as well was actually an excellent nursing home. It really was just top-notch nursing home. They had a full-time activities department, and the man who ran that would constantly be involving the residents in minor exercises. He would have this thing where he would get them in a circle and they would pass a balloon around. They were constantly listening to music, going outside and dealing with their garden. He constantly kept them engaged and I think that’s extremely important for the elderly, especially those who are in the nursing home.
Schenk: That’s right. So I think what’s important is to think of the nursing home, the assisted living facility, long-term care facility as an operation involving multiple players that have their different roles as you pointed out, that they’re all doing things, and the more people you have to fill those roles, the better your loved one is going to be.
Smith: Yeah, absolutely. I mean the worst nursing homes are the ones that you’re concerned about adequate healthcare staffing, and the best one is where you’re moving way beyond that and you’re looking at how much staffing do they have in the activities department. That’s what you want for your loved one. I mean you don’t want anything less than the best.
Schenk: And speaking of the best, what is the opposite of the best, Will?
Smith: The worst.
Schenk: Unfortunately, we’ve reached the worst part of the episode and that is the ending. So we hope you’ve enjoyed the content of this particular episode, what to look out for in terms of staffing and who the staff actually is and what they do, and we hope that you would join us for our next episode.
As always, you can always listen to this podcast, the audio portion, on iTunes or Stitcher, or you can actually watch our program on NursingHomeAbusePodcast.com, again that is NursingHomeAbusePodcast.com, or you can check us out on our YouTube channel. Episodes are available fresh off the presses every Monday morning. You can check us out then or anytime that you have time at your leisure to watch or to listen.
With that, we will see you next time.
Smith: See you next time.
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