Articles Posted in Elder Law Attorneys

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A new elder neglect lawsuit was filed recently in Cook County alleging mistreatment by home health caregivers. The complaint, filed last week, can be viewed online in full.

Several different Chicago home health companies and facilities are named in the complaint, which seeks to hold the entities accountable for the actions of their employees in the scope of their employment.

The plaintiff in the case is a man filing suit on behalf of his now-deceased father. The father was receiving care at his home. However, in mid-November of 2011, the senior was brought to a local hospital for a range of problems, including several bed sores, an infection, diabetes problems, and sepsis. His lower leg was amputated to stave off the infection, but the senior died a few days later as a result of complications.

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Unlike seniors who receive aid from at-home caregivers, those in nursing homes have virtually zero control over the actual front-line workers on whom they rely. Upon moving into a long-term care facility, residents immediate count on the individuals who were hired for basic tasks–preventing falls, proper grooming, ensuring nutrition, and more. When those caregivers leave, it is the owners and operators who make decisions about hiring new employees. Residents are left out of the process entirely.

Those of us who work on cases of nursing home neglect appreciate that this theme of complete reliance on others is at the center of the nursing home resident predicament. Much like the trust a medical patient places in their surgeon upon being put under anesthesia, nursing home residents (and their families) must rely on caregivers. In fact, the ultimate trust is actually places in the owners and operators of the homes, who make decisions about hiring caregivers, ensuring adequate resources, sufficient safety policies, and more.

Bad Care Trends

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Earlier this week we discussed how the Administration of Aging’s Administration for Community Living (part of the U.S. Department of Health and Human Services) revealed its plan to enact proposed rule changes to the State Long-Term Care Ombudsman Program (LTCOPs).

On Tuesday those proposals were officially released, providing all those with a stake in these programs the chance to get a look at how the program in their state may change if these rules are adopted. You can view those proposed rules in full here.

LCOP Background

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Obviously all nursing home residents deserve to receive quality care every day that keeps them safe from harm. However, there are times when caregivers will, unintentionally, make mistakes. Like any other human, a worker may accidentally fail to check on a resident, forget a medication, or make a similar blunder. When that happens, if harm results, it is only reasonable for those responsible to pay for the consequences of the error. That is not necessarily a permanent condemnation of the individual who made the mistake–it happens. But none of that changes that the fact that all of us–from doctors and nursing home workers to care drivers and lawyers–are responsible for the results of our actions, regardless of our intentions.

In an ideal world those responsible for accidents in nursing homes would immediately admit the error, explain the situation, and do whatever possible to make it right. Sadly, that sort of openness and honesty is rare. Instead, many caregivers (and owners and operators) engage in the exact opposite conduct; doing everything in their power to avoid any and all accountability.

Far too many in this situation refuse to share information, make up excuses, point blame elsewhere, and otherwise fail to be forthright. This usually acts as a second blow to nursing home residents and their family members who are simply trying to understand what happened.

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America is “graying.” The Baby Boomers are retiring, and over the next few decades the percentage of the overall country that is in their traditional “golden years” will steadily increase. This obviously presents a host of challenges at all levels of society–from the individual family up to the national government.

One of the foremost issues implicated by the demographic shift is elder care. Do we have enough skilled nursing facilities, assisted living homes, at-home caregivers, and other support services to accommodate the rising needs? Those are difficult questions. So far, most who have looked closely at the current state of the situation note that we are woefully unprepared to provide the aid that will be needed in the coming year. Not only are advocates worried that there will not be enough access to necessary services, but there are also concerns about the quality of the services that are performed.

Helping Those with Cognitive Challenges

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Traditional nursing homes–known as “skilled nursing facilities”–are able to provide a degree of actual medical care at the facility itself. Of course, caregivers provide support–like making meals, washing clothes, help with grooming, and more. But they can also provide more sophisticated treatments. However, there is a limit to the scope of care available in these locations. When a serious medical emergency strikes, it is critical that the seniors in the facility be taken to an actual hospital to receive in-depth treatment or emergency services.

Sadly, there are circumstances when caregivers at a nursing home do not act in a timely fashion to ensure their residents receive the hospital aid they need. That seems to be what happened in a matter which led to a trial that ended last week.

Nursing Home Neglect Jury Decision

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For decades the Illinois nursing home abuse lawyers at Levin & Perconti have aided local seniors and their families following nursing home neglect. While there is slowly a growing awareness of the real need to address the rampant nature of nursing home mistreatment (thanks largely to demographic changes), we still have a long way to go before nursing home residents are treated as well as possible in all locations.

Legal accountability following preventable harm is one of the key ways to improve overall care. If poor care is a financial negative for these owners and operators, then they are far more likely to do what it takes to raise standards. It is partially with that idea in mind that the state of Illinois has a law known as the Illinois Nursing Home Care Act. The statute outlines how private community member can hold nursing home accountable for their poor care–it is a critical legal protection for all Illinoisans. Our attorneys frequent protect resident rights based on the provisions in this law.

Recently, two of our attorneys contributed to an article published in the Law Bulletin’s “Law Day” publication discussing the nature of the Illinois Nursing Home Care Act. You can download the full article in .pdf form by clicking here.

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Arbitration clauses have long been an issue in Illinois nursing home neglect cases. As many are aware, these are clauses included in admissions documents and sometimes signed by families while admitting their senior into the home. The clause is the nursing home company’s attempt to force any future neglect case to go through an alternative arbitration process for resolution instead of using the traditional legal justice system with a judge and jury. Nursing home companies like arbitration for one reason: it offers them a better chance at avoiding accountability than the regular courtroom. For this reason families are encouraged to never signs an arbitration agreement.

Beating Back the Clause

However, even if one of these was signed, that does not mean that a future elder neglect claim can never been seen in court. That is because there are times when nursing home neglect attorneys can successfully challenge the clause and allow a traditional lawsuit to be brought.

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As with any profession, experience in certain legal cases ultimately breeds the best results. That is why all those who may work on nursing home neglect cases in the future should take advantage of the opportunity to learn the ins and out of these matter from those who have worked on these cases for decades. Fortunately, attorneys have just that opportunity thanks to a new seminar being organized by the American Association for Justice (AAJ). The meeting is entitled “Litigating Nursing Home Cases Seminar: From Case Selection to Trial,” and is being presented in conjunction with the AAJ’s Nursing Home Litigation Group. It is open to AAJ Plaintiff Members and AAJ Paralegal Affiliates.

As the name implies, the seminar will cover everything from the intake process to identify the cases with the best chance of success all the way to the ultimate trial. Considering its wide-ranging scope and the critical importance (and prevalence) of these cases, this seminar is something that many local attorneys and firms should consider.

Promotional materials for the event explain that “Program highlights include sessions on building a corporate case by following the money trail, proving understaffing at the nursing home, and selection and use of experts.”

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Is there a difference between a skilled nursing facility and an assisted living facility? Yes. Skilled nursing facilities, usually referred to as nursing homes, provide the most comprehensive medical support that a senior can receive outside of a hosptial. They are staffed by nurses, nursing assistants, and have doctors available. On the other hand, assisted living facilities have less professional medical support. Instead, they are usually staffed by assstants who provide non-medical aid, like helping with travel, making meals, and other day-to-day chores. All of this means that skilled nursing facilities are where those with more vulnerabilities and medical needs go, while seniors who are more capable of living on their own but prefer to have some extra security are best suited for assisted living facilities.

These differences sometimes have an effect on some legal details in the event of mistreatment and injury. In particular, the situations that give rise to suits claiming mistreatment at a traditional nursing home (skilled nursing facility) may be both traditional negligence as well as medical malpractice. Conversely, professional malpractice is unlikely to be present in any assisted living facility accident, because actual professional care is not provided.

The somewhat confusing intersection of medical malpractice and neglect in nursing homes was recently evidenced in a case reported by Fox 5. The investigative report found serious instances of neglect accusations at a skilled nursing facility. State health officials noted the the facility may have been responsible for the death of a resident due to poor medical care. They also point to past instances of negligent treatment which indicates that all residents of the home might be at risk of harm if standards are not raised.