Nursing Home Injury or Death

Below are some frequently asked questions when it comes to nursing home injury and death.

If I Suspect Poor Care of My Loved One In a Nursing Home, What Can I Do?

Take photos of any visible injuries. Talk to the direct care staff. Voice your concerns to the nursing supervisor and the administrator. Keep a diary of your conversations. Put your concerns in writing and provide a copy to the administrator. Save a copy for yourself. You may also contact the Long Term Care Ombudsman Program in your state to voice your concerns. The Ohio program’s main number is 1-800-282-1206.

If I Suspect My Loved One Was Injured or Killed Due to Negligence By the Nursing Home, What Can I Do?

If you suspect your loved one was injured or whose death was caused by the nursing home’s negligence, then you should immediately lodge a complaint against the nursing home with your state’s agency who inspects nursing homes. In Ohio, this agency is the Ohio Department of Health. You should also immediately consult with a nursing home injury or death attorney.

How Do I Submit a Complaint Against a Nursing Home?

Check your state’s own regulations on how to file a complaint. In Ohio, you would submit a complaint by sending an email to hccomplaints@odh.ohio.gov. In your email, put your name, address, and phone number where you can be reached. Identify the nursing home, along with their address. List in your email what facts you know and what concerns you have. Ask for a complaint investigation to be conducted. While the inspector/surveyor may or may not find regulation “deficiencies,” it will likely lead to better care for your loved one. The squeaky wheel does get the “grease.”

How Are Nursing Homes Regulated?

Nursing homes are heavily regulated by the federal and state governments. After widespread nursing home abuses, Congress passed an omnibus legislative bill in 1987 that included the Federal Nursing Home Reform Act. It applies to all nursing homes that accept Medicare or Medicaid funds, which is virtually all nursing homes today. This Act created a set of minimum standards of quality care and rights for residents in nursing homes.

How Are These Minimum Standards Enforced?

The Federal Nursing Home Reform Act is enforced by state agencies who are hired by the Centers for Medicare and Medicaid Services (CMS) to police the nursing homes. In Ohio, the Ohio Department of Health (ODH) is the agent for CMS. The ODH hires nursing home inspectors, referred to as surveyors, to conduct annual and complaint inspections/surveys. When a surveyor conducts an inspection of a nursing home, they are reviewing records and speaking to nursing home personnel and to residents. They are looking for “deficiencies,” which are violations of the federal regulations. The nursing home can be penalized by the imposition of fines, but these fines are often reduced through a mediation process.

How Do I Select a Nursing Home?

First, go to www.medicare.gov/nursinghomecompare and check out the detailed information and overall ratings of a particular nursing home. The website information is derived from data compiled by the Centers for Medicare and Medicaid Services through several resources. The information includes general information, ownership information, health inspections, staffing information, and quality of care. Second, ask people you trust for recommendations, such as your attorney, doctor, or clergyman. And, third, go visit the nursing home you are considering. Visit during the day and also at night. Check out the staffing. Do they seem short-handed or rushed? The most important consideration in choosing a nursing home is whether the nursing home has sufficient direct care and nursing staff 24 hours a day. Don’t be fooled by fancy furnishings. The best-looking nursing homes may or may not be the worse in providing care.

What Are the Most Common Nursing Home Injury or Death Claims?

Nursing home injury or death cases are based on proving negligence by the nursing home and its personnel. Negligence is the failure to use reasonable care and/or failure to follow the minimum nursing and medical standards of care in the nursing home industry. There must be medical expert proof that the failure to use reasonable care or meet the minimum standards of care caused the resident the claimed injury or death. The more common negligent failures in nursing homes include failure to prevent avoidable falls, failure to prevent avoidable pressure sores, failure to follow physician orders, failure to have adequate staffing, failure to assure proper nutrition and hydration, and failure to supervise residents that leads to choking on food, falls, malnutrition, and dehydration.

How Is Liability or Fault Generally Analyzed in Nursing Injury or Death Cases?

A nursing home injury or death case, in general, is analyzed by a competent, experienced nursing home lawyer in part as follows:

• Did the nursing home properly assess the resident for foreseeable risks of injury/harm?
• Did the nursing home implement a comprehensive Plan of Care for the resident with suitable interventions to minimize the risks of injury/harm?
• Did the nursing home effectively communicate the Plan of Care to all personnel, including the direct care staff?
• Did the nursing home periodically monitor the interventions to see if the interventions were effective?
• Did the nursing home periodically re-assess the resident for additional risks of harm?
• If the nursing home did the above five things correctly, would the injury or death have been unavoidable?
• If the nursing home did not do one or more of the above things, then why not and what was the nature and extent of the injuries or harm caused?

What Good Can Come From a Lawsuit Considering My Loved One Is or Was of Advanced Age?

No matter the age or condition of a loved one, no one has the right to injure or harm another person when the injury or harm was avoidable had reasonable care been used. We all want to die on our own terms with family and friends surrounding us. And, death ends a life, but does not end a relationship with surviving spouses, children, parents, and other next of kin. Life is precious no matter what a person’s age or medical conditions. And, institutions like nursing homes will seldom change their unsafe or negligent practices unless they suffer the consequence of a large monetary verdict. There is nothing else that will effect real change.

How Do I Find a Lawyer Competent to Handle Nursing Home Cases?

Nursing home injury or death cases are a subset of medical malpractice cases. Not all med mal attorneys take on nursing home cases. A competent attorney who accepts nursing home cases must be very familiar with the federal and state regulations that apply to nursing homes. The attorney must have contacts with nursing and physician experts who will need to review the relevant records to determine if nursing or medical standards of care were violated and whether those violations caused the resident’s injury or death. The most experienced and knowledgeable attorneys who handle nursing home cases are those who do so regularly. His or her membership in the American Association for Justice Nursing Home Litigation Group is a good indication that the attorney regularly handles nursing home cases.

When I Meet With the Lawyer What Should I Bring With Me?

Once you have identified a lawyer who regularly handles nursing home cases, call the lawyer to briefly discuss the circumstances of your potential case with the lawyer. If the lawyer believes this may be a viable case, then he or she will schedule a consultation appointment. For this appointment, it’s often best if several family members attend so the whole picture can be presented. Bring all legal documents pertaining to the loved one such as a will, guardianship papers, durable powers of attorney, and health care powers of attorney. Bring a list of all known physicians and other care takers who cared for your loved one while a resident in the nursing home. Bring photos of the loved one’s injuries, and bring photos showing the loved one before the injury or harm occurred. If the consultation reveals that this matter should be investigated, then the attorney will advise the next steps to be taken.

What Documents Will My Lawyer Gather Pre-Suit to Investigate a Nursing Home Case?

If the loved one has passed away, then first an Estate will need to be opened with Probate Court to get a Letter of Authority to be permitted to obtain the deceased’s medical records. Then, the attorney will begin to gather as many public and private documents as possible before suit is filed. These will include all relevant nursing home records, all hospital records, any EMS records, and physician out-patient records. This process can take some weeks. The lawyer will go on-line to gather as much public information as possible about the nursing home, including obtaining a copy of the Medicare Compare Profile for the nursing home. The lawyer will review all social media about the nursing home on their website or Facebook. The lawyer will request from Medicare and Medicaid the nursing home cost reports and quality measures reports. The lawyer may request from Medicare all licensing and certification documents. Other documents to be gathered include any police reports, prior annual inspection reports and prior complaint inspection reports conducted by the state agency hired by Medicare to conduct these surveys of the nursing home, and other public records.