Articles Posted in Elder Law Attorneys

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

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

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.

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.

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.”

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.

Much of the nation went to the polls on Tuesday to cast a vote in the myriad of elections scattered across the country. Of course, the most high-profile contest was the Presidential election; it was hard to watch television, walk down the street, or check you social media status without being reminded of the election in the last few months. All of that ended this week with U.S. President Barack Obama reelected for a second term, to serve for the next four years until 2016.

Some might hope that with the election over, the political talk will end. However, in reality, the election is just the beginning, and the administration (along with the public) will hopefully be engaging in long discussions in the coming months and years about the best way to help solve the various problems and challenges that lay before us. Some of those issues relate directly to the health, well-being, and care of Americans seniors.

Many might naturally be wondering what the President’s re-election means for those who need long-term care, like nursing home residents. Helpful, the Consumer Voice–one of the nation’s leading advocacy groups for seniors–sent an email to supporters after the election discussing a few of the major impacts of the President’s re-election. Of course, the candidates had different ideas for how they would handle certain issue which impact seniors and their families. And while we do not know for sure how these things will shake up in the coming months once dragged through the political process, we can make some assumptions based on what the President has done in the place and said he plans to do in the future.

As part of a Policy Series, the Consumer Voice–one of the nation’s leading senior care advocacy groups–recently created a brief on an important piece of federal legislation. If passed, the new measure, known as Senate Bill S. 3604, would be a helpful step forwars in ensuring proper care is provided to one particularly vulnerable group of nursing home residents–those with cognitive conditions like dementia.

Senate Bill S. 3604

The bill is referred to as the Improving Dementia Care for Older Americans Act. The focus of the measure is simple: eliminate the chemical abuse of residents with antipsychotic medication drugs. As elder care attorneys and other advocates have consistently shown, many long-term care facilities continue to have a hair-trigger response when it comes to prescribing these powerful medications to control seniors, particularly those with dementia. Not only is this over-use severely detrimental to these resident’s quality of life, but it is downright dangerous. Prescription drug experts have explained vociferously that use of these drugs on dementia residents poses serious risks, including death.

Recently the National Consumer Voice for Quality Long-Term Care created a fact sheet that provides a helpful overview of a very acute problem in senior care: the overuse of antipsychotic medications. The problem is particularly troubling when used to control senior’s with cognitive conditions like dementia. The overuse is an example of nursing homes choosing the easy road without promoting the health and well-being of each individual senior resident in their care.

The Scope

As outlined in the fact sheet, many nursing home residents receive these drugs without a proper diagnosis for one of the specific conditions that the drugs are supposed to treat. This means that they are given out far too leniently. The sheet suggests that a staggering one-quarter of all nursing home residents are on antipsychotic medications. When just residents with dementia are considered the number jumps even higher. Amazingly, almost 40% of nursing home residents with dementia are taking antipschotics. And this all is true even though the U.S. Food and Drug Administration has issed a “Black Box” warning on use of the drug for these residents leads to increase risk of serious complications, including even death.

Businesses are vital to our national health. Obviously all of us own, work for, and use the services of countless private enterprises each and every day. However, an understanding of the pivitol role companies (big and small) play in our society does not mean that any position taken by the business community is automatically the correct one. It is critical that all organizations be forced to abide by reasonable rules so that their conduct does not harm others and to ensure proper accountability when harm does arise. Unfortunately, there are times when large business interests–like the U.S. Chamber of Commerce–pursue policies that unfairly harm society as a whole. All of us who care about preserving the well-being of community fairness must stand against these dangerous organizations and arguments.

Community members whose family members are mistreated while at a nursing home fully understand the harm that comes when big business interests place their own well-being ahead of other members of society, often their very own customers.

Recently the American Association for Justice put together a slideshow listing ten different ways that the largest pro-business advocacy organization–the U.S. Chamber of Commerce–harms the country. Please click here to view the entire slideshow

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