This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hey out there and thanks for joining us for the Nursing Home Abuse Podcast. I am Rob Schenk.
Smith: And I am Will Smith.
Schenk: 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 deep inside the catacombs of the library in Atlanta, Georgia.
Got a lot of important stuff to talk about today, but before that, just to let you if you’re a new listener, you can download the audio portion of this podcast either on iTunes or Stitcher, or you can watch this podcast in its video, and audio form as well, audio-video, audio-visual, AV – Will was in AV in high school – but anyways, you can watch this podcast either on our website, which is NursingHomeAbusePodcast.com, or on our YouTube channel. And just to clear the record, Will was not in the AV club in high school because he went to school in White County, Georgia, where they did not have electricity. So the audio-visual of his school would have probably been drama class. Did you land anywhere close to that?
Smith: No, but we do have an interesting topic for today, if you want to go ahead and jump into that.
Schenk: Okay, we can do that. So today, and this is on the heels of several articles about the subject matter that we found interesting over the course of the past several weeks, but what are some of the more overlooked signs of neglect, that is to say what are some things that you would observe and equate to other circumstances and not necessarily the lack of proper care of understaffing at a particular nursing home?
Smith: This is an interesting topic because you will hear us talk time and time again about bedsores, about people falling, about malnutrition. These are very common and I think they’re very evidence because they’re so prominent and they’re so visible.
Schenk: You don’t have to be a doctor or you don’t have to be an expert in nursing care to know that a stage four bedsore is probably not a good thing.
Smith: Yeah, but there are other areas that are commonly overlooked, and one of those, and I think that this one is a major one, is actually dental care. It used to be the case maybe 30 years ago that the vast majority of people who were coming into the nursing home had dentures. But with the progression of society with more fluoride in the water, with more dental care just typical amongst people in America, people are keeping their teeth longer, and that’s significant.
And the reason that that’s significant is because dentures are really easy to clean. All you have to do is take them out, you put them in water with one of the many different cleaning tablets or agents that you have, and you also can brush these dentures and clean them, and it’s super easy. And then you take a dentist stick, which is a small stick that’s got a sponge on the end of it that has some sort of fluoride or some sort of medicated chemical in there, and you put it in the individual’s mouth to clean their gums and in between their cheek, you clean their tongue and that’s it. The issue you have more and more nowadays is that we are starting to have people who don’t have dentures who still have their teeth.
Schenk: It’s more problematic.
Smith: It’s absolutely more problematic because it is so much harder to clean somebody’s teeth that are still in than it is to clean dentures. I mean you have to think about how difficult it is to clean somebody’s teeth who’s assisting you. So imagine how difficult it is to clean somebody’s teeth when they don’t want you to do it, when they are fighting you.
And I was reading an article – McKnight’s – McKnight’s is an online blog that primarily serves the nursing home industry, so they’re on that side of it, but they were citing a study where they found almost 90 percent of long-term care residents don’t receive dental care during their stay. That’s phenomenal.
Schenk: That’s an epidemic.
Smith: That’s an epidemic, and it’s a problem because it’s not just an aesthetic thing, like, “Well I want grandma to have pearly whites.” You can get cavities, which are bacterial infections in your enamel. You can get inflammation of the mouth.
Schenk: And according to studies that are pretty recent, the other problem is pneumonia.
Schenk: It can lead to pneumonia, which again, can be devastating and lethal to an average elder of increasing years.
Smith: Yeah, and it’s that oral bacteria that can lead to one of the major causes of death, which is pneumonia. And so the question comes down to what do you do, and it’s the same thing that you do in a lot of the other situations that we talked about. You stay active. When you go there and you’re hanging out with your mom, your father, your grandfather, grandmother, look at their mouth. Check their mouth. Ask the staff what kind of oral care is Grandmother getting, and make sure that they know that you’re being vigilant, you’re being aware, not to mention the fact that you can help out as well. Maybe you make sure that he or she’s got a toothbrush.
When you go there, you help them brush the teeth, because a lot of times, there’s about two-thirds of the people in nursing homes have dementia, so if a family member is there to help calm that person down, it can really assist the staff in cleaning their teeth.
And I’ve talked about the staff at these nursing homes before and I’ve said they’re really great people, but when they’re so overwhelmed that they don’t have a lot of time, they, like we do in medicine all the time, they triage. So they prioritize things, and number one is these people need to be changed, because the vast majority of them are incontinent. And along with that is they need to be fed. And number two is they need to get showers. And way down on that list is, “Hey, I need to brush this person’s teeth.”
Schenk: Way down on the list.
Smith: Way down on the list. And that’s just not good. That causes infections and that can kill them.
Schenk: And even so, a recent article cites that there are no current national assessments of oral health in nursing homes, but since 2011, at least seven states have evaluated residents using a survey developed by the association of state and territorial dental directors. One was Kansas, where a dental hygienist examined 540 older residents in 20 long-term care facilities. So here, nearly 30 percent of the residents had substantial oral debris on at least two-thirds of their teeth.
Smith: Oral debris is food or other non-teeth-related matter that’s in their mouth.
Schenk: The screener say plenty of fillings and crowns, but concluded that regular dental care has become a thing of the past. And in Wisconsin, near 1,100 residents from 24 homes were examined. About 31 percent had teeth broken to the gums with visible roots – that’s 31 percent – and then 35 percent had substantial oral debris.
So I think that’s an important thing that you mention is that when you go and visit your loved one, I know that sometimes you tell me as soon as I walk in the room that I need to brush my teeth. Be cognizant of the smell. What does it smell like?
Smith: Yeah, check their mouth out. Like look at their mouth, look at their teeth, and also, this makes me think of something as well, it’s not just the CNAs and the nurses. Are they getting seen by a dentist? If Medicare and Medicaid are paying for their stay, they’re paying for dental services as well, so you may need to bring up to the DON, “Hey, I want a dentist to see Mom. I want a dentist to check them out,” because aside from cleaning their teeth, the staff can’t do a real dental inspection to see what needs to happen. And if you’ve got somebody who’s got a broken tooth, maybe they’re in pain, they can’t express that to you if they have dementia. So be on top of the staff and speak with the staff, but also make sure they’re actually getting dental examinations by dentists.
Schenk: That’s right, and it’s extremely important for the reasons that you mentioned and the fact that a lot of times, they can’t do it for themselves, but this is not a very well known fact, but many prescription drugs, many medications cause saliva to give out or to dry out, and of course as we know, saliva is a fighter of germs and bacteria in the mouth. So when you don’t have that natural immunization – I don’t know what the right word is for…
Smith: Yeah, your body doesn’t produce it anymore. And this also is extremely important for people who have G tubes, who are fed through a tube in their stomach. Just because they’re not taking in food through their mouths doesn’t mean they don’t need oral care. They may not have any teeth at all in their mouth and they’re fed 100 percent through a G tube. Nevertheless, they still need to have the inside of their mouth cleaned periodically. So that’s something that you also need to check out.
Another area, and I think that we talked about this very briefly in another segment about the staffing and what the staffing are capable of doing, another area of neglect can be fingernails and toenails. Now in the elderly, in anybody with a compromised system, cutting their fingernails and cutting their toenails is a medical procedure. It’s not something that CNAs need to do. It is something that nurses are capable of doing.
Unfortunately, it often doesn’t happen and one of the reasons is, I was reading an article in the Nursing Times, and they were talking about the fact that so many nurses are becoming de-skilled at cutting fingernails, and it is indeed a skill. It’s not only difficult given the fact that you’re cutting somebody else’s fingernails, it’s difficult because if somebody’s got diabetes, even a simple nick can turn out to be very serious, or they’re taking Coumadin, or it can lead to, we talked about one time an individual got a burn that went unnoticed and it ended up killing her, if you clip their nails too close and they get a slight infection there, that infection can end up turning into sepsis.
So it is a medical procedure, and unfortunately what this Nursing Times article pointed out that there is an unwritten understanding, an unwritten policy among nurses that they’re not the ones that need to be doing the nail care, because if they mess up, they’re going to get sued.
And unfortunately what ends up happening is that nobody does the nail care, and that can cause problems for a couple of reasons. Number one, and I have seen this before and it is absolutely awful, a lot of times, nursing home residents will contract, so their muscles for various different reasons are starting to pull in on themselves, and they can’t extend their hands anymore. They’ll do it with their heels, but especially in this circumstance, the hands.
And if their hands are not periodically opened and their fingernails clipped, I’ve seen a case where a woman’s fingernails, her hand was contracted, her fingernails grew into her skin and almost came out the back. This was a tiny woman with tiny little hands and it was just truly disheartening.
Not to mention fingernails, if the person is scratching themselves, if they’ve got BM, bowel movement into their nails, it can help spread infection not only all over their body but to other members of their family, to the staff, to other residents. So nails need to be cleaned. They need to be short – not too short – but there needs to be constant nail care.
And unfortunately, like this article is pointing out, a lot of nurses are not doing that and they’re kind of waiting on the doctors to do that and I can tell you right now those geriatric doctors are not there every day or every week or even every month.
Schenk: Right, and to that point, obviously the mindset of the RN or the CNA or whoever it is, it’s not necessarily, although it can be that this is a medical procedure and I don’t want to risk hurting, but also the fact that they don’t want to do it because it’s an ordeal sometimes.
Smith: Oh I mean it just goes along, it’s just the same thing as brushing somebody’s teeth that doesn’t want their teeth brushed. Imagine how difficult it is to cut a fingernail of an elderly man who doesn’t want you to do that because he has dementia and he doesn’t know what’s going on and he keeps trying to pull his hands or feet away.
Schenk: I don’t even like it being done to me now and I’m an adult man.
Smith: Yeah, it’s a time consuming, staff consuming ordeal. It’s not like you can just go there, sit down and go, “Okay, Mr. Johnson, let me cut your fingernails.” You have to have several members of the staff try to hold him steady, which can cause injury in and of itself.
Schenk: And again, when you’re dealing with an understaffed or even an adequately staffed nursing home and you have to prioritize what is going to cause immediate injury or immediate pain, and you work backwards from there. And unfortunately a lot of times fingernail clipping, dental hygiene, these things fall way down the list on the priority list of “Let’s change the incontinent patients. Let’s make sure we pass out the appropriate medications.” Brushing Mr. Johnson’s teeth or cutting his nails due to the amount of effort that goes into it and due to the no short term – in their eyes – benefits from it, it goes undone.
Smith: It goes undone. It does. And it’s like any other time that we’ve talked about a solution. It starts with you going to the nursing home and keeping track of that loved one. Look at their fingernails. Look at their teeth. Ask questions. Get involved in their care.
And that leads me to another area that I want to talk about, which is extremely important and is very much overlooked, and that is bowel obstruction. This is something that I think is an epidemic and is systemically a problem in the nursing home industry, and that is people having bowel obstructions. They don’t have…
Schenk: What is a bowel obstruction?
Smith: Well a bowel obstruction is any time – it’s constipation essentially. And the CDC in clinical interventions on aging studies found that 74 percent of nursing home residents experienced constipation, and it comes from certain medications…
Schenk: Medications, diet…
Smith: Opioids, for example, which a lot of elderly take, they slow down the intestinal muscles and they cause constipation. There’s a lack of movement. If your grandmother is in the bed all the time, she’s not moving around, it affects her ability to have a bowel movement. And essentially what you have is you have an obstruction in the intestines, and you’re not passing this waste out of the body, and you get a buildup of bacteria that can kill somebody. It’s that serious.
Schenk: We have a case that we’re working on now where that’s exactly what happened. There was constipation over the course of right now an undetermined amount of time, which led to an infection of her body, which nearly killed her. And the bowel obstruction was rock hard. It almost had to be surgically removed.
Smith: And you can have a bowel obstruction. You can also have what’s called an impaction. Impactions are hardened pieces of feces. Usually they’re in the lower colon, just in my experience, and there’s nothing coming out, and it’s the same thing as an obstruction. They’re getting backed up bacteria.
So what nurses are supposed to do is they’re supposed to keep, CNAs and the floor nurses, keep track of how often a person goes to the restroom. They keep track of their output for urine. They keep track of their bowel movements. And what should happen is that CNAs chart when an individual has a bowel movement, and at least in one of the nursing homes I worked at, it was a period of three days. If a person hadn’t had a bowel movement in three days, because these are elderly people, they don’t go every single day, but if they haven’t had one, then on the third day, you were supposed to notify the doctor because it can happen quickly, and the results are horrible. So what you do as a loved one, as a family member, and this is the simplest method of prevention, “Has mother had a bowel movement?”
Schenk: Oh that’s right.
Smith: That’s it.
Schenk: In summation, in terms of the signs of neglect, you ask and observe the dental hygiene. Does the breath smell? Are the noticeable cavities? Has he or she, the loved one, had their teeth brushed?
Smith: Check the toothbrush. Is the toothbrush always dry? Is it in the same spot all the time? Set something up so you can figure that out.
Schenk: And then look at the nails, fingernails, toenails. Are they clipped? Are they trimmed? Make sure you ask when was the last bowel movement, because these things are to prevent two things – number one, actual injury from prolonged neglect on each one of these items. So for example, as we said, a cavity might lead to bacteria, which might lead to pneumonia. The toenails or fingernails might lead to infection due to the grim underneath the nails. The obstructions can lead to, again, infection of the body, infection of the blood.
But secondly, by addressing these issues with the nursing home staff, you’re confronting an overall potential problem with understaffing or neglect to begin with. If you’re observing these symptoms in your loved ones, that may mean if he or she falls, no one will come help her for a long time, or maybe she will be more high risk for a bedsore because they can’t do these things, they’re not going to reposition.
So it functions to A) help prevent a long-term injury, but B) helps reduce the risks of neglect in other areas.
Smith: Right. Yeah, absolutely. So just stay vigilant, be aware and be involved. And with that, I guess we’re going to segway into another topic, which is choosing the nursing home and the methodology that is used.
And the reason we bring this up is we’ve, in another episode, discussed you doing the reconnaissance – going to the nursing home, looking at the facility, what does it smell like, what is the staff like. But actually physically going to the nursing home is not the only way you can investigate these nursing homes.
There are several online methods of looking at nursing homes and comparing the different nursing homes to find out where you want to put a loved one. The best place to go, first and foremost, is going to be either the state website, which for Georgia is the Department of Community Health, and looking at the ratings that the state investors have given the nursing home.
Smith: Investigators. What did I say?
Smith: I said investigators.
Schenk: I heard investors.
Smith: Only you know the truth about this.
Schenk: Yes, we leave it to the public record.
Smith: So the investigators, and there are going to be reports on there if the facility gets – which I have not run into a facility that doesn’t get the Medicare or Medicaid… If they get Medicare or Medicaid, then they’re going to be on the Nursing Home Compare website of Medicaid. And what you’ll find on there are the ratings and then any investigative reports that have been given by that agency.
And so US News and World Report is also an online source that you can use for evaluating nursing homes, and what US News and World Report have done is they have looked at the CMS ratings of all of the 15,506 nursing homes in the United States. That’s how many we have. We have probably the most out of any industrialized nation on earth.
Schenk: And according to the US News and World Reports, they did it over a 12-month period, because it’s a yearly review, for all months in which a facility reviewed receives an overall individual domain ratings, the ratings were summed and divided by the number of monthly ratings to attain an average, which was then rounded down to the nearest 0.1 star. However, according to US News, the star ratings were capped. So you couldn’t receive over four stars.
Smith: Which is significant, because they recognize the best nursing homes, the best facilities with overall ratings of 4.5 stars…
Schenk: Or better.
Smith: …Or greater. Yeah.
Schenk: So you’re capped at four stars, meaning a nursing home cannot get better than a four star rating with US News if one of the following conditions applied during the reporting period of the previous month, so that would be…
Smith: That would be… And this, you only need to have one of them, that the nursing home received an overall CMS rating of three stars or less in any one month, that the home received a CMS rating of two stars or less in health inspections or staffing in any one month, or if the home was not rated by CMS for medical quality measures or staffing in any month in which it received an overall rating.
Schenk: And then this rating is actually very intricate. Then the facility would be capped at three stars if in any month during the 12-month period of analysis the home received a CMS rating of two stars or less in medical quality measures – quality measures.
Smith: Or a nursing home’s averaged 12-month star rating was capped at four if the home’s overall rating was limited under the rehabilitation services cap, which is what we just read.
Schenk: So I think that with anything, this is a good starting place. So you might start – if you’re considering placing your loved one in a nursing home or an assisted living facility, then you go to US News and World Report website, look it up in your area and do that as a starting point, but we always recommend that you go and kick the tires.
Schenk: You go into the facility, take a look around, what does it smell like, what do you see, what do you observe. Do the residents appear happy? Ask relatives of the residents that are there. So this is a good launch point.
Smith: It is, and it’s important, but like I said, here’s what it’s not going to tell you. It’s not going to tell you how many lawsuits have been filed against this facility. We are involved in lawsuits against several facilities that have had multiple lawsuits filed against them, and they still appear to have pretty high ratings on Nursing Home Compare and even US News and World Report. So overall, the nursing home might be good, but you’re not going to find out about these lawsuits because oftentimes there’s an arbitration agreement in place and it doesn’t make it to public, or there’s a settlement agreement in place and it’s confidential. And just because we file a lawsuit against a nursing home doesn’t mean that the state gets involved. CMS is put on notice about the lawsuit because of the Secondary Payer Act…
Schenk: And for other reasons.
Smith: …And for other reasons, but it’s never reflected in their ratings of the nursing homes. So unless somebody files a complaint with the state or with the government, you’ll have nursing homes that have multiple lawsuits that still have pretty high CMS ratings.
Schenk: That’s right. So that’s why it’s important to, in this day and age, use every means that you have at your disposal to research and select the long-term care facility for your loved one.
Smith: And there is something else I want to bring up because it’s just now happening in the past year. It used to be the case that when you went to a hospital and you said, “I need to put mom or dad in a nursing home,” that the hospital would just say, “Here’s a list of all the nursing homes near us.” They couldn’t get involved in, “Well here’s a list of the good nursing homes,” or “Don’t put your mom or dad in this nursing home.”
But there’s a new rule and I’m looking at this was on an NPR article very recently, the new rule says hospitals must assist the patients, their families or their representatives in selecting a post-acute care provider by using and sharing data about quality that is relevant to the particular patient’s needs for recovery.
That is significant. That means they may actually start getting involved in helping you decide, well what is the best nursing home for mom or dad, whereas it used to be they couldn’t do that and they could just tell you objectively, “Here are nursing homes 1, 2 and 3.”
Schenk: “Here’s what they cost.”
Smith: Can’t help you any more than that.
Schenk: That’s it. That’s right.
Smith: So I think that’s going to be very helpful for families in deciding where to put nursing homes, because that’s a very stressful decision. When your mother’s in a hospital and you know that she’s not going back home with you, you’ve got to put her somewhere. You can’t leave her in the hospital indefinitely. So hopefully that will be something that aids families in the future in deciding where to put their loved ones.
Schenk: And we actually hope this episode has helped you in that same respect because we have come to the conclusion of this particular episode of the Nursing Home Abuse Podcast. As always, you have multiple options to consume this podcast. If you’re listening, did you know you can actually watch, and if you’re watching, did you know you can just listen if you want to. If you care to download only the audio portion, you can do that over at iTunes or at Stitcher. If you want to watch, you can always do that at our website, NursingHomeAbusePodcast.com, NursingHomeAbusePodcast.com, or our YouTube channel. Fresh episodes – I say fresh, I mean new – they debut, they drop, whatever the kids say these days, every Monday morning, or you can listen to your leisure during the week as you commute, exercise, walk, hang out or work or whatever it is that you do.
Smith: For leisure.
Smith: Not leisure.
Schenk: I think they’re appropriate. I think both are common depending on what part of the country you’re from. We know that Will is from a mountain in northeast Georgia and he materialized from underneath a hedgerow.
So anyways, we hope that you enjoy this episode and we look forward to seeing you next time.
Smith: ‘Til next time.
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