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Summary: Nursing homes are frequently a patient's destination for
rehabilitation following surgery.  Common conditions fitting
this bill include large bone fractures, hip replacements and stroke.
Following these acute episodes, the patients are too unstable to
go home and not "sick" enough to have their hospital stays
reimbursed by insurance companies.  The purpose of admission
to a nursing home is to help the patient regain lost function,
strength and health.  In this case, the patient would remain in the
Nursing Home till her death of complications.

The patient was admitted to a state owned nursing home
following repair of a femoral fracture.  Her treatment plan
emphasized Physical, Occupational therapy and Nursing care
to provide for rehabilitation.

She had successfully undergone surgery to repair a fractured
femur.  The length of stay projected was six weeks.  During
this time, the patient's condition would worsen rather than
improve.

This is not an isolated incident.  Media attention is continuously
focusing on conditions in nursing homes.

"A TIME investigation has found that senior citizens in nursing
homes are at far greater risk of death from neglect than their
loved ones imagine. Owing to the work of lawyers, investigators
and politicians who have begun examining the causes of
thousands of nursing-home deaths across the U.S., the grim
details are emerging of an extensive, blood-chilling and for-profit
pattern of neglect."2

The patient's skin was intact and she was continent on admission.
She would develop multiple pressure ulcers on her bony
prominences.  These are frequently the consequence of inadequate
turning and poor nutrition.  Monitoring of both of these factors
are direct responsibilities of nurses and nursing home personnel.
If either is inadequate, a duty is owed to the patient by the nurse
to inform the physician.  The physician, once made aware, is
then charged with taking additional measures as needed.

The patient would have a Foley catheter inserted supposedly
for urinary incontinence.  Documentation would later show
that need for catheterization had not been established.

The patient had been fully continent on admission.  Her
rehabilitation plan called for her to ambulate to the bathroom
when needed.  An assessment of her ability to go on her own
was nowhere to be found at the time of her Foley catheter
insertion.  Development of a urinary tract infection is a known
complication of catheter use.  The patient would develop a
UTI soon after.

"In the last year, complaints against nursing homes in Texas
are up over 60%. Medication errors, under-staffing, unsanitary
conditions, neglect, lack of care, substandard care and injuries
from dangerous products, are but a few of the dangers. The
administrators of these facilities contend that the level of care
is excellent in Texas nursing homes but, state investigators and
Texas juries have been sending a different message."3

On the initial trial, the court dismissed the claims.  They based
this on the fact that the nursing home personnel were "state"
employees and supposedly immune from liability.

The patient's family appealed.

Questions to be answered:

1. Could the nursing home personnel in a public facility be
held liable for negligence in the care of the patient?
Specifically, could they be sued for not maintaining the
standards of care required by the state?

2. Were the "incidents" leading up to the patient's deterioration
reasonably "foreseeable" by a prudent caregiver in a
similar situation?

On appeal, the plaintiff presented multiple pieces of evidence
documenting neglectful incidents.

This documentation included fractures during transfers (one
requiring re-hospitalization and extensive surgical repair),
the development of skin breakdown, the development of
infections of the respiratory, urinary and gastrointestinal tract.

Each of these events suggested that care for the patient could
be falling below accepted standards.  Each of these events
could be identified as necessitating further therapy and
increasing the patient's length of stay.

In reviewing the Tort Immunity Acts of Illinois, it was
determined that liability could be assessed for acts of
negligence or omission in the patient's care.

It was clear from physical, mental and health status changes
that the patient was deteriorating.  These changes, specifically
the multiple injuries during transfers, development of skin
breakdown and infection could be traced to negligence in the
omission of required care.  Any time the treatments prescribed
by the physician are not carried out, or if it is not documented
that they have been carried out, the possibility of omission and
negligence is raised.

It is highly unlikely that if the treatments and care prescribed
had been given that the gross deterioration would have occurred.
In this case, documentation of care was not present.  Documentation
of "likely results of neglect" was present.

This underscores the necessity of properly documenting the care
you give.   Many facilities are adopting "charting by exception"
policies.  These are dangerous in that they may not account for
basic care given.  In saving time and nursing costs for a facility,
not fully charting care given can raise the question of a nurse's
omission and negligence later in court.

If the temptation to chart care that is not given is present, keep
this in mind.

If time for giving proper treatments and care is not there,
falsifying records is patently illegal.  It is an offense that
could cost you your license if reported to the State Board.

In the case of a lawsuit, it is much cheaper for a facility to
scapegoat a nurse, than defend one.  If reporting you to the
State Nursing Board, or threatening to will give their attorney's
a bargaining chip to keep an employee "quiet," about existing
conditions they'll use it.

"Generally, the nursing-home industry likes to settle lawsuits
quietly and often hands over money only in exchange for
silence."2

A nurse must decide if saving facility money by spending
less time charting or on patient care is worth possible liability
or loss of licensure down the road.  It is highly unlikely that
a nursing home or hospital will defend a nurse named in a
lawsuit.  This chiefly will happen only when the facility's
assets are at stake.

If conditions in a nursing home are visibly substandard, a
nurse must ask if it is wise to continue working in the facility.
Ask yourself.  Is the administration receptive to suggestions
for improvement?  Do they raise concerns over overtime and
time involved to complete care and charting?

As media attention and lawsuits increase, more nurses will
find themselves involved in legal actions.  If it's determined
that poor conditions existed yet nothing was done about
them, the cost in liability could be high.

"Palo Alto attorney Von Packard has studied the death
certificates of all Californians who died in nursing homes
from 1986 through 1993. More than 7% of them succumbed,
at least in part, to utter neglect--lack of food or water,
untreated bedsores or other generally preventable ailments.
If the rest of America's 1.6 million nursing-home residents
are dying of questionable causes at the same rate as in
California, it means that every year about 35,000 Americans
are dying prematurely, or in unnecessary pain, or both."2

Many states have "elder abuse" legislation mandating abuse
be reported.  Whistle blower legislation is slow in coming.
Currently the employer's interests are put first rather than the
patient's or employees in most cases.  Protections for nurses
that do report abuse are questionable in their effectiveness.
The risk of employer retaliation is high.

The chances of a nursing home or hospital defending you
against the State Board of Nursing when your license is
at stake over an incident are almost none.  In fact, it is
common for complaints to be filed by the facility where
a nurse has worked.

Unless you have a personal malpractice insurance policy,
you will be forced to pay for this representation out of pocket.
For less than the cost of a typical day's pay (around $70-$90
per year), most personal policies will provide representation at
no additional cost to you.

Related link Sections:

Direct Patient Care Links on: The Nurse Friendly
http://www.nursefriendly.com/nursing/linksections/directpatientcarelinks.htm

Ethics:
http://www.nursefriendly.com/nursing/directpatientcare/ethics.htm

Foley Catheterization:
http://www.nursefriendly.com/nursing/directpatientcare/foley.catheterization.htm

Informed Consent:
http://www.legalnursingconsultant.org/legal.nurse.consultants.lnc/informed.consent.medical.legal.htm

Mechanical & Physical Restraints:
http://www.nursefriendly.com/nursing/directpatientcare/mechanical.physical.restraints.htm

Medical Legal Consulting Nurse Entrepreneurs:
http://www.nursefriendly.com/nursing/ymedlegal.htm

Operating Room (Surgical) Links on: The Nurse Friendly
http://www.nursefriendly.com/nursing/directory/spec/operatingroom.htm

Nursing Homes, Long Term Care Links:
http://www.nursefriendly.com/nursing/nursing.homes.long.term.care.htm

Wound Care:
http://www.nursefriendly.com/nursing/directory/business/woundcar.htm

Sources:

1. 39 RRNL 12 (May 1999)

2. Time Magazine.  October 27, 1997. Fatal Neglect. Retrieved July 11, 1999 from the World Wide Web: http://cgi.pathfinder.com/time/magazine/1997/dom/971027/nation.fatal_neglect.html

3. Law Offices of James K. Burnett, P.C. 1999.  Nursing Home Negligence. Retrieved July 11, 1999 from the World Wide Web: http://www.nursinghomenegligence.com/
 

Send comments and mail to Andrew Lopez, RN

Created on July 11, 1999

Last updated by Andrew Lopez, RN on Wednesday, January 30, 2013

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