2. Has the resident demonstrated an unexplained dramatic change in condition?  The nursing home is required by law to maintain the resident’s highest quality of life and condition that is practicable.  Unless there is a plausible medical explanation, therefore, the resident should not be experiencing dramatic changes in condition.  If there is a medical explanation, the nursing home staff has a duty to notify the family and explain.  In most instances, a change in condition will require that a physician be notified as well.  If the resident has a dramatic change in condition that is unexplained, this raises a concen for abuse or neglect.

3. Is the resident uncharacteristically sedate, lethargic or unresponsive?  While anti-psychotic medications are often used to ease anxiety or agitation on the part of nursing home residents, they should not be used as “chemical restraints.”  More and more, there is a tendency for nursing home staff and attending physicians to overuse anti-psychotic medications in order to control or subdue difficult residents, rather than addressing the root cause of the difficulty such as a resident’s fear of the new environment, isolation and loneliness or other medical problems.  Where a resident who was previously active and communicative becomes sedate, lethargic or unresponsive, it raises a concern for overmedication.

4.  Has the resident experienced a signficant loss of weight?  A nursing home is required to provide a resident with a diet and supplements adequate to meet the resident’s nutritional needs.  If the resident has difficulty swallowing or has individualized dietary needs, the nursing home must provide the necessary specialized diet or therapy with eating.  If a resident refuses to eat certain types of food, the facility must provide alternatives and nutritional supplements, such as milkshakes, to ensure that the resident’s needs are met.  If there is a concern about a resident’s lack of eating or nutrition, the resident’s weight should be checked regularly to ensure there is no unhealthy weight loss (or gain).  If the resident loses a significant amount of weight over a relatively brief period of time, this raises a concern for abuse or neglect.

5.  Has the resident suffered serious skin breakdown?  The law specifies that a nursing home must prevent skin breakdown in the form of pressure ulcers, unless skin breakdown is unavoidable.  Pressure ulcers occur because a resident is left in one position (either lying or sitting) too long, causing pressure to build to the point where the skin begins to break down.  For residents who require regular assistance with toileting, this problem is compounded when they are left for extended periods of time lying in urine or feces.  Pressure ulcers begin as discolored, reddended skin, but can quickly worsen to open wounds with blackened, decaying flesh and a discernable odor.  If a resident experiences a significant wound of this type without plausible explanation, it raises a concern for abuse or neglect.

DEQUEEN, Ark. – A Court in Sevier County decided today (April 17, 2009) that a family deserved $7 million for the neglect and wrongful death of its patriarch.

It was a record judgment for the county – the previous high was believed to be $1 million -but the family likely will never see any of the money.

“This was a terrible, terrible situation involving a man who was loved by many,” said Little Rock attorney Jeff Priebe, of Wilkes & McHugh, P.A. “Now they have closure, but they may never be compensated for their loss.”

John W. Minor, an 87-year-old DeQueen man, died after officials at a local nursing home neglected him to the point where his body was covered with 35 bedsores. The sores, many in advanced stages and infected, made it impossible to embalm his body when Minor passed away on May 2, 2004.

On Aug. 8, 2005, Minor’s family, including a wife, step-daughters and grandson, filed a lawsuit against the nursing home, Sevier Healthcare Inc., and its management company, Regional Management Inc., for negligence, violation of the Arkansas Long Term Care Resident’s Rights Statute, and wrongful death.

The suit details how Minor, who was admitted to Sevier Healthcare, 1206 West Collin Raye Drive, DeQueen, in August of 2002, also suffered from severe malnutrition, multiple urinary tract infections, pneumonia, severe dehydration leading to kidney failure and more. The injuries, “caused John W. Minor to lose his personal dignity and caused him to suffer extreme and unnecessary pain, degradation, anguish, otherwise unnecessary hospitalizations, emotional trauma, and death,” according to the suit.

The lawsuit alleges the defendants, among many other things, tried to maximize profits by reducing staffing levels below what was needed to provide adequate care to residents. They failed to provide adequate care for Minor, to the point where their actions were “grossly negligent, willful and wanton, outrageous, reckless, malicious,” according to the suit.

The family sought compensatory and punitive damages for medical expenses, pain and suffering, mental anguish, loss of life, and funeral expenses.

In a hearing today (April 17, 2009), the court, after hearing testimony from Minor’s family, ruled for $3.5 million in compensatory damages and $3.5 million in punitive damages.

It is unlikely the family will see any of that money, because the former owner and director of both Sevier and Regional previously filed personal bankruptcy.

Wilkes & McHugh, P.A. attorneys and Minor’s family learned this early in the litigation process, but saw the case through in an effort to bring awareness to the problem of nursing home abuse and neglect in the hopes of preventing others from receiving such horrific treatment, Priebe said.

“I wish that something could be done to help them,” Priebe said of his clients. “It’s not about the money. It’s about letting them have their day in court.”

The facility currently has a new name, is under new ownership and management, and was not involved in this case.

For more information, contact Attorney Benjamin Gideon at Berman & Simmons, 1-800-244-3576 or visit www.bermansimmons.com

Here is an article from LawyersUSAonline.com relating to a recent verdict returned by a Georgia verdict in a pressure ulcer case:

A Georgia jury has awarded $1.25 million to the family of a nursing home patient who died from a severe bed sore that the family alleged was caused by inadequate care at the home.

Melvin Raybon, a 67-year-old diabetic with past serious health problems was admitted to Tucker Nursing Home in 2002. Nine months later, he was moved to a treatment hospital for a Stage 4 bed sore that infected his left buttock to the bone.

After being moved to yet another nursing home, Raybon’s conditioned worsened and he began suffering from malnutrition as a result of the original infection. He fell into a catabolic state and in June 2004, he died.

For plaintiff attorney Benjamin Land, the issue was showing jurors that Raybon’s death likely would not have occurred if not for the original bed sore, which, Land inferred, was a direct cause of the understaffed Tucker Nursing Home.

“Nursing homes are in business to take care of people with health problems and limitations,” said Land. “[Jurors] expect nursing homes to do what they’re paid to do. The point of this trial was to prove to jury that negligence had occurred and they did not take care of Mr. Raybon.”

Defense attorney Walter Bush Jr., representing Kindred Healthcare (the previous owners of Tucker Nursing Home), claimed the size of the settlement was a result of the judge in the trial misreading state law and plans to appeal.

“Speaking to the jury, I got the impression if the judgment had followed the law it would have been in the range we expected to pay during the [pre-trial] settlement case.”

Understaffed home

Land approached his case by showing that the quality of care at Tucker Nursing Home was detrimental to patients and was a direct result of understaffing.

His primary piece of evidence was the testimony of four former certified nursing assistants who worked at the home. All four testified that the lack of employees resulted in occasionally being unable to give each patient the care they needed.

In Raybon’s case, not only was he diabetic, he had suffered from a brain tumor previously and had to have part of his skull removed. A past amputation of his leg and incontinence required him to be turned in bed every two hours. The four assistants claimed because of understaffing, they were only available to turn him twice during an eight-hour shift and sometimes not even that many.

“The gist of their testimony was that if they had had more staff, these problems caused to [Mr. Raybon] would likely not have occurred,” said Land.

The defense argued the testimony of the four assistants should have been inadmissible.

“Three of them had no personal knowledge of Mr. Raybon,” said Bush. “We moved to eliminate these testimonies because they were in effect to introduce similar acts as proof of another negligent act. It’s just character evidence that this was a bad place to work with bad working conditions, and that is not probative evidence whatsoever with regard to the deviation of standard of care.”

Bush further argued that the issue of staffing at a medical facility should not be determined by former employees but by an expert opinion, which was not provided by the plaintiffs.

“The issue of staffing should never be based on the perception of an individual who claimed they had too much work to do, but on a number of factors such as the underlying conditions and the layout of a facility.”

Chain reaction verdict?

Land did not argue the case as a wrongful death suit, but rather based the settlement demands on Mr. Raybon’s “loss of dignity in the last year of his life.”

He deferred to Georgia’s joint and several liability laws, which make an initial hospital or nursing home liable for further injuries stemming from an original injury, even if the additional injuries occur somewhere else.

While Bush did not dispute that, he said it was a violation of Georgia law for the plaintiffs to seek payment for medical bills under the instruction that the initial pressure sore at Tucker was somehow responsible for all subsequent injuries caused off the premises of the home.

Bush called the final award a “chain reaction verdict” that was an “erroneous and inappropriate” instruction on the part of Judge J. Antonio DelCampo.

But the jurors did not agree, and awarded Raybon’s daughter, Yolanda Latimore $1.25 million for medical bills and other compensatory damages. According to the complaint, Latimore had repeatedly asked management at Tucker to better care of her father, though she was often busy taking care of her mother, Shirley Raybon, who had breast cancer at the time.

Land claimed the decision to not go for a wrongful death suit was key, and appealed to the jurors.

“We decided the case is about human dignity and the value of that dignity during a man’s last year on earth. Defenses tend to want to blame the residents’ injuries on underlying medical problems. In my opinion, juries don’t buy that.”

For more information, contact Attorney Benjamin Gideon at Berman & Simmons, 1-800-244-3576 or visit www.bermansimmons.com

Ben Gideon recently published an article on how to identify and evaluate a nursing home case involving pressure ulcers.  Below is an excerpt.  To read the full article, click here: http://www.bermansimmons.com/article_detail.php?id=67

Here’s the scenario. Susan is your long-time client.  She is a pleasant woman in her fifties.  One day she comes to see you and tells you that about eight months ago, she made the difficult decision to admit her mother to a nursing home.  Before that, mom had been living independently in her own apartment.  Mom was doing alright, but then suffered a minor stroke, fell and broke her leg.  After that, she could no longer get around or to the bathroom by herself and needed help rehabilitating her leg.  Her heart condition was not life-threatening, but after the stroke, her mental health deteriorated and she was often confused and disoriented. She needed more care and supervision than Susan and her family could provide on their own.  Susan located a facility that accepted Medicare and advertised “24-hour” skilled-nursing care, and she made arrangements for her mother’s admission.

Less than eight months later, Susan’s mother died as a result of cardiac shock triggered by a bacterial infection that spread to her bloodstream.  After spiking a temperature, the nursing home transferred Susan to the local hospital.  For the first time, Susan saw a baseball-sized gaping hole of rotting flesh all the way to the bone on her mother’s buttocks.  This was determined to be the site of the infection that led to her mother’s death. 

Susan was shocked.  She had visited her mother almost every day, and, although her mother’s confusion continued to worsen, there were no signs of deterioration in her mother’s health until the abrupt end.

Susan comes to you now looking for answers.  Her anger at the nursing home is exceeded only by her own feeling of guilt for placing her there.  She wants to know if she can make a claim against the facility.

To answer Susan’s question requires an understanding of (1) what a pressure ulcer is and why it occurs; (2) the laws and regulations pertaining to pressure ulcers that apply to skilled nursing facilities; and (3) the facts that culminated in her mother’s death.

For more information, contact Attorney Benjamin Gideon at Berman & Simmons, 1-800-244-3576 or visit www.bermansimmons.com