Articles Posted in Nursing Home Negligence

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In recent years there has been much talk of “whistleblowers.” The most high-profile stories refer to government employees or military personnel who leak secrets to reporters about various government programs. There is significant public disagreement about the value of these political revelations.

It is important not to forget, however, all of the whistleblowers who are not engaged in political matters at all, but who step forward to demand fairness for vulnerable populations like medical patients and nursing home residents.

As elder care advocates know, one of the most important ways that the worst nursing home caregiving practices are fixed are when actual employees say “enough!” and come forward. These whistleblowing employees are able to provide direct evidence of the negligent, and often illegal, practices of individual nursing home or entire nursing home chains. In so doing, these individuals can enact massive changes, literally saving the lives of an untold number of residents.

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Our attorneys are proud to work with residents in Chicago and throughout Illinois after poor nursing home care leads to injury. In most cases the process is initiated by the family of the resident. Sadly, families often only learn of problematic care after an incident which causes harm–a nursing home fall, the development of pressure sores, an attack by another resident, or similar accident. When that happens the legal system usually allows the family to recover compensation for the harm irrespective of possible state and federal sanctions for any care violations.

When helping families with these matters, the final resolution in our cases is often a settlement. These are agreements between the parties to resolve the matter without the need to have the issue decided by a judge or jury. Settlements are an efficient way to resolve disputes, ensure fairness, and provide incentive to ensure proper care 100% of the time.

New Illinois Nursing Home Settlement

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Nursing home lawsuits seem to pit the residents (and their family) against long-term care facility owners, operators, and staff members. Yet, in many of these cases it would be inappropriate to consider the residents in an antagonistic relationship with the staff members. In fact, as elder care advocates have pointed out again and again, when it comes to ensuring proper care, the residents are usually on the same side as the staff members. That is particularly true when it comes to “front-line” care workers–or those who provide help to residents day in and day out. Many of those employees do yeoman’s work with long hours, little pay, poor benefits, and little employer support. On many occasions, it is those employees who are the first to stand up for residents when resources are cut to the bone by owners and operators. In this way, nursing home residents and their families often side with front-line care workers in various disputes with owners and operators.

Sadly, the drive for profits by many long-term care facilities often results in severe cutbacks for the employees who are the lowest rung on the totem pole–but who do the most for residents each day. Often those actions result in labor disputes.

For example, last week, as reported by CBS local, employees at more than 50 Illinois nursing homes–including 12 Chicago nursing homes–conducted an “informational” picketing in front of a local facilities. According to reports the picketing was in response to chronic problems at so many facilities. One employee interviewed for the story explained that, amazingly, her facility continues to face severe shortages of even the most basic supplies, placing resident care and quality of life at risk. For one thing, she noted that things like diapers–or even food!–was sometimes at a bare minimum. On top of that, her facility, like so many around the state, face chronic under staffing problems. There is simply not enough bodies to help residents in the timely way that is necessary. No matter how well-intentioned those care workers, failure to have enough bodies in the hallways is a recipe for nursing home abuse and neglect.

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As discussed earlier this week, the federal Centers for Medicare and Medicaid Services (CMS) is in a position to exert significant influence over quality of care at nursing homes. That is because most facilities depend on receiving payment from the CMS programs covering seniors without the means to pay for nursing home care on their own. For this reason, CMS has requirements, incentives, and programs aimed and getting facilities to provide better care to both improve senior lives and lower overall long-term care costs.

Minimizing Nursing Home Neglect

For example, last week CMS officials announced the start of a new program aimed at lowering avoidable hospitalizations of nursing home residents. When senior residents are abused or neglected, they often require hospitalization to treat the consequences of the mistreatment. It is not uncommon for those hospitalizations to drag on, as senior bodies are often frail–complications are common. Those hospitalizations are quite expensive. Minimizing readmissions to hospitals is therefore a key cost-containment effort.

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What is the biggest insurance program in the country? Medicaid. Nearly 1 in 5 Americans participate in Medicaid, and that total is rising. According to some recent estimates about 11 million more people will be added to the programs over the next decade.

Of course Medicaid is often associated with Medicare, but there is much confusion over the basic roles of these programs.

In theory, Medicaid is suppose to help lower income Americans of all ages while Medicare is healthcare for seniors. However, the reality is that a large portion of Medicaid costs are actually spent on senior care as well–most notably long-term stays in nursing homes. That is because Medicare usually only covers limited nursing home stays–often 90 days–and only those directly from the hospital. Long-term care for seniors that have significant disability is usually not covered. That means that a senior who needs that care is either required to pay for it out of pocket, use private long-term care insurance (if they have it), or try to qualify for Medicaid. Medicaid is based on the individual’s assets. That means that many seniors are forced to “spend down” their assets in order to qualify for the program.

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Lawyers working with those hurt by negligence or abuse at nursing homes often warn families about the dangers of mandatory arbitration agreements. Many sign these agreements as part of the admissions process unknowingly. But their signature often has harmful effects down the road if their loved one does not receive the care to which they are entitled and are injured. That is because the agreement often limits the family’s ability to file a regular suit in the civil justice system. Instead they must go through arbitration–an alternative system that is usually far less favorable to the nursing home resident’s interests.

However, even if an arbitration agreement was signed, sometimes an attorney will try to fight the enforcement of that agreement. There remains much disagreement about when these agreements must be enforced. Across the country, including Illinois, judges are grappling with rules that force families into these agreements.

Latest Illinois Arbitration Ruling

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Knox News reported earlier this month on a follow-up to a tragic case of nursing home neglect and abuse on which we’ve previously posted. The underlying case involved the rape of an 89-year old woman with severe dementia. Late last month the senior resident told her family that earlier in the summer a man entered her room and raped her. She did not know the man. Eventually the police were called in and a rape test was performed. The test revealed DNA samples of the attacker–though the criminal has yet to be identified.

Of course this opened up a big question: how on earth did the man enter the room and have access to the vulnerable senior? Perhaps the most obvious answer is that the attacker may have been a male employee of the facility. Lawyers and other advocates working on these cases appreciate that sexual assault by caregivers is not unheard of.

The state Department of Health investigated the matter, issuing a suspension on new admissions into the facility after determining that the home’s current policies and procedures placed residents at risk of harm. This particular home is run by a large nursing home conglomerate which operates at least 225 facilities in 28 different states. In other words, if this company was cutting corners or not abiding by proper safety protocols, then tens of thousands of residents may be at risk.

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One of the first questions those considering taking legal action ask involve their recovery. What damages does the law allow? In most cases the answer is pretty straightforward–medical expenses, pain and suffering, emotional loss, and more. In some cases of senior abuse or neglect there may also be lost wages, though most seniors in these cases do not work.

On top of these damages, some may have heard about “punitive damages.” These are unique awards which do not seek to connect damage to a specific harm suffered by a plaintiff. Instead, punitive damages are rooted in punishment–seeking to deter others from engaging in similar conduct as the defendants. Much confusion remains around these damages. They remain quite rare, and, in most cases, they will not be awarded. To help explain the situation the Center for Justice and Democracy has a “White Paper” that provides a helpful overview. Click Here to view the entire document.

Punitive Liability

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Our Chicago nursing home neglect attorneys know that placing a loved one in a nursing home is a hard thing to do. The hard choice is typically weighed against the peace of mind that comes with knowing that the nursing home will provide your loved one with the support and care that you as an individual or family may not be able to provide given daily time constraints and lack of facilities.

Many Illinois long-term care facilities are free of violations and have a proven record of providing sufficient care to residents. These homes operate above minimum staffing levels and properly train staff to care for residents. However, unfortunately, not all nursing home facilities are as prudent about their care as others. Many put profits before people and operate at minimum staffing levels to save money. When there are not enough employees to properly care or monitor residents, accidents can occur.

The Chicago Tribune reported today on a 62-year-old man in a Northside Rogers Park Chicago nursing home who suffered severe burns while smoking. The resident was in a wheelchair, and, after being left on an outside patio, lit up a cigarette and placed his lighter in his pocket. The 62-year old continued to smoke his cigarette when his clothes, unexplainably, lit on fire. The man in his wheelchair and another resident tried to suffocate the fire to no avail. The fire was finally put out with the use of a fire extinguisher, but not before the man had suffered first and second degree burns. The man was rushed to nearby hospitals where he was pronounced dead from his injuries.

Although the circumstances surrounding this nursing home death have not been revealed, we know that many times preventable deaths occur when residents are not properly supervised. Our Illinois nursing home neglect lawyers have helped many families following nursing home burn cases like this one. For example, we reached a $1.5 million settlement against one nursing facility after it violated the Nursing Home Care Reform Act and did not monitor a monitor a mentally impaired resident who burnt himself while smoking. In another case we helped a family reach a $900,000 settlement against a facility who did not monitor one resident’s unauthorized smoking, resulting in his death.
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Our Chicago nursing home neglect attorneys were not surprised to learn of a study by researchers at the University of Iowa, reported on by Reuters, which found that black residents of long-term care facilities are more likely to suffer from pressure sores. The difference in care is not a result of nursing homes providing better quality care for white residents, but rather that residents were more likely to develop pressure sores in nursing homes where a majority of the residents are black. Like many types of nursing home abuse or neglect, this could be a result of understaffing or fewer resources.

The study also found that residents in predominantly black nursing homes were at least 30 percent more likely to suffer from bed sores that those in facilities with a small population of black residents. These disparities echo an investigation by the Chicago Reporter from 2009 that revealed that Chicago nursing homes where the majority of the population was African-American had much lower CMS quality ratings than facilities where the majority of residents are white. Their investigation also revealed that Illinois had the most poorly-rated African-American nursing homes in the country.

Our Chicago nursing home lawyers are all too familiar with this epidemic, having represented hundreds of families in lawsuits involving bed sores caused by nursing home negligence. Nursing home residents have a high risk for these wounds because many of them are elderly, and often wheelchair bound or bed ridden. Bed sores develop when pressure builds in an area of the body and restricts blood flow, leading to necrosis. This can be aggravated by body moisture from sweating or incontinence. Common areas for pressure sores include a person’s heels, tailbone, elbows, and shoulders. In order to prevent pressure sores from forming, nursing homes need to employ sufficient staff who can spend time examining each resident’s skin condition and also turning and repositioning residents to redistribute weight. Other preventative measures include pressure relieving mattresses, wheelchair pads and heel protectors.