Articles Posted in Nursing Home Abuse

Two certified nurse assistants working at the Macclenny Nursing and Rehab Center were arrested this week on charges of physically abusing a resident.  More specifically, the CNAs were accused of forcefully pushing the resident into her bed, pulling her up by a shirt wrapped around her neck, throwing her into a wheelchair and slapping her.  The resident is 85 years old, blind and suffering from a spinal injury.  The incident was captured on surveillance video footage.  The CNAs were fired.

Macclenny Nursing and Rehab Center is rated two out of five stars by the Centers for Medicaid and Medicare Services, which is considered “below average.”  It received only one star for “health inspections.”  Macclenny is located one county to the west of Jacksonville’s Duval County.  CMS’ website is located at www.medicare.gov/nursinghomecompare.

Video footage is much more common today than in the past and it is greatly changing how we perceive claims of abuse, whether it occurs in the context of nursing home care or the degree of forced used by law enforcement.  This is a very good thing. Our Jacksonville nursing home injury lawyers routinely investigate and prosecute nursing home abuse and neglect cases; however, unless there is video footage, situations in which intentional assault by nursing home staff can be proven is very rare.

When there is no footage of the actual abuse, these cases rarely see the light of day.  Often, the victims of abuse suffer from cognitive decline and make poor historians.  They may forget the abuse occurred or otherwise be unable to express themselves in a clear manner.  Of course, video footage changes all of this.

While it has not been reported how the video footage in this case was obtained, we have seen an increase in family members, who are suspicious of abuse, putting “nanny cams” in a resident’s room to catch an abuser.  News stories across the country reflect many instances of assault by nursing home staff being caught by hidden cameras.

When handling nursing home abuse cases, it is very important that an attorney investigate the hiring process used by the operators of the nursing home to determine the suitability of the candidate.  While criminal background checks are almost always done, is is common that contact to prior employers is not done.  When we contact those prior employers, we may learn of previous conduct on the part of the employee that would have been disqualifying had the nursing home performed its due diligence.

In addition, it is important to review other complaints of abuse against the same employees.  We often find that claims of abuse are not taken seriously by nursing home operators.  The failure to fully investigate prior allegations of abuse can lead to damning evidence against the managers and operators of the nursing home.

Macclenny Nursing and Rehab Center is a 120 bed nursing home operated by the Sovereign Healthcare Holdings, Inc., which manages 28 nursing homes in Florida and Georgia.  In the Northeast Florida area, Sovereign operates the following nursing homes: Jacksonville Nursing and Rehab Center located at 4134 Dunn Avenue Jacksonville;  Macclenny Nursing And Rehab Center located at 755 S 5th St, Macclenny; and Moultrie Creek Nursing And Rehab Center located at 200 Mariner Health Way in Saint Augustine.

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On April 9, 2019, a 71 year old veteran died after being attacked while residing at the St. Augustine Health and Rehabilitation nursing home.  The man’s 84 year old roommate was found on top of him striking him in the face and head.  The man was rushed to Orange Park Hospital and then to another hospital in Jacksonville; however, tragically, he died from his injuries.

According to the St. Johns County Sheriff’s Office, the medical examiner confirmed the man died from the attack due to blunt force trauma.  His injuries included a fractured skull, broken bones and injuries to his eyes.  The death has been ruled a homicide.

The victim had suffered a stroke years before that left him bed bound and partially paralyzed rendering him essentially defenseless. The reason for the attack has not been disclosed; however, the mental health of the other resident is, of course, being considered.

Tragic incidents such as this are largely preventable as an assault with this degree of violence is rarely a nursing home resident’s first sign of aggressive behavior.  Rather, aggression may begin with verbal threats and progress to physical acts such as shoving or pushing.  It is necessary that this type of behavior be recognized by nursing home staff and dealt with immediately in order to keep the other nursing home residents safe.

Resident on resident assaults can happen in nursing homes and steps must be taken by the nursing home operators in an effort to prevent these types of incidents.  Many nursing home residents suffer from a degree of dementia.  Some people suffering from dementia become aggressive even though they were never aggressive before.  As such, it is very important that nurses and nurse assistants at nursing homes are always on the lookout for aggressive behavior on the part of any resident in order that responsive measures can be taken to protect the other residents.

For a lawyer handling a resident on resident assault case against a nursing home, it is important to obtain a complete clinical picture of the assailant’s behavior prior to the assault.  Next, the attorney must determine what steps, if any, the nursing home took in response to any previous instances of aggression on the part of the assailant.  In addition, it is important to look at the assailant’s criminal background and any history of aggressive behavior.   Finally, the nursing home’s policies and training must be reviewed to determine if employees were properly trained and instructed on: screening residents to determine who is inappropriate for a nursing home setting; identifying signs of aggressive behavior on the part of a resident; and responding to such aggression.

Of the nursing homes we investigate, most of the time we find that they are understaffed.  Because of this, CNAs and nurses do not have time needed to tend to each resident.  Actions that require additional time, such as responding to, or reporting, the first signs of aggression by a resident, can often be pushed to the side with devastating consequences.  In fact, in our experience, understaffing is the most common cause of nursing home neglect injuries and death.

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A licensed practical nurse working at Life Care Center of Orange Park nursing home was arrested this week for grand theft of a controlled substance.  The arrest came following an investigation into missing prescription painkillers.  Over one hundred hydrocodone and oxycodone pills were reported missing.

Life Care Centers operates hundreds of nursing homes in twenty-eight states.  In the Jacksonville area, it operates three nursing homes: Life Care Center of Jacksonville; Life Care Center at Wells Crossing (located in Orange Park); and Life Care Center of Orange Park.  These three nursing homes have received high rankings from the Centers for Medicare and Medicaid Services, respectively earning five stars, three stars and five stars on CMS’ one to five star rating system.  While certainly not an infallible measure of quality, our lawyers have noticed a strong correlation between the ranking system and the level of care provided.

Theft of prescription painkillers, or “drug diversion” as it is commonly called, at nursing homes is a nationwide problem.  The Controlled Substances Act of 1970 regulates narcotic pain medication. Nursing homes must maintain a Controlled Substances Log pursuant to  21 U.S.C. 827(a).  A Controlled Substances Log is used to track every dose of pain medication by recording the date and time the pill was obtained by a nurse, the name of the resident receiving the medication, the name of the nurse receiving the medication, and the name of the subscriber.  Pain medication must be kept in a separately locked cabinet in a secure area of the nursing home.

This level of documentation does not however, ensure that the nurse actually gives the pain medication to the resident.  Many residents of nursing homes suffer from a degree of confusion or dementia.  It is a simple enough task for a nurse to provide the resident an over the counter pain reliever while pocketing the actual narcotic.  Of course, such a practice is a clear violation of the nursing standard of care and a violation of the nursing home resident’s rights.

The effect on the defrauded nursing home resident is more than just having to temporarily endure needless pain.  The sudden cessation of regularly taken pain medication can cause serious withdrawal symptoms.  Further, unaddressed chronic pain causes a host of other problems including: depression; interruption of sleep; impaired cognitive function; compromised cardiovascular health; and decreased quality of life.

If you are concerned that a loved one is not receiving his or her pain medication, there are steps you can take.  First, we recommend a meeting with the resident’s doctor, the nursing home’s director of nursing and the resident’s unit manager to discuss the issue.   Second, a urinalysis can be performed to determine the amount of pain medication the person has metabolized.  Lastly, we always recommend that anyone concerned about nursing home neglect or abuse contact Florida’s Department of Children and Families abuse hotline at 1-800-96-ABUSE. Continue reading

Under intense lobbying by the nursing home industry in 2001, the Florida legislature enacted legislation requiring a pre-suit investigative and notice period before a lawsuit could be filed seeking compensation for death or injury caused by nursing home neglect.  At first glance, the pre-suit requirements may have seemed like a good thing.

Before filing suit, a claimant must have the matter reviewed by a doctor or registered nurse expert.  If the expert comes to the conclusion that the nursing home did something wrong that caused harm to the resident, the case can progress.  After that, the parties are to engage in a 75 day period during which they are to exchange information.  Finally, the parties are required to mediate before suit can be filed.

The problem is that the statute provides no repercussions if a nursing home refuses to provide information and refuses to mediate – and, as a result, that is exactly what the nursing homes do.  In litigating nursing home injury and death claims for more than 10 years in Jacksonville, we have had only one nursing home willing to engage in the statutorily “required” pre-suit mediation.

The truth is that the pre-suit process provides no benefit whatsoever to injured residents.  Instead, it greatly increases the cost and length of time it takes to seek compensation.  Meanwhile, the nursing homes reap huge benefits from this process at no cost.

Florida Statute § 400.0233 requires that the claimant’s attorney conduct a good faith investigation.  To do so, the attorney must have the nursing home’s records for the client in question.  This is where the delay starts –  nursing homes are provided 30 “working days” to produce the records of a former resident.  Given weekends, this allows a nursing home approximately 40 days to simply make a copy of the records.

The lawyer must then review the records to determine what happened.  The records are not easy to read and typically involve hundreds of pages.  In short, the lawyer is working backwards to determine if the injury, illness or death could have been prevented.  To do so, we are scouring the record for signs and symptoms of the impending illness or incident along with any responses made by nursing home staff to prevent the injury or illness.

If the lawyer believes that the nursing home operator was neglectful or abusive, and, in so doing, caused serious harm or death, the statute requires the records be reviewed by a physician or registered nurse.  This is  expensive as a reviewing doctor or R.N. is going to charge expert witness fees on an hourly basis to review all of the pertinent records, typically including those from a receiving hospital.

If the expert comes to the conclusion that the nursing home was negligent or abusive, then a pre-suit notice must be sent by certified mail to every “prospective defendant.”  It can be difficult to determine who the prospective defendants are as nursing homes in Florida are typically operated by a maze of related limited liability companies.  This is purposefully done by nursing home operators in attempt to shield themselves from liability and to avoid transparency regarding their profits.

The statute allows for the parties to request documents and take statements from witnesses.   However, the nursing home operators refuse to comply with these requests.   They get away with this because Florida’s statutes on nursing home claims (unlike the medical malpractice statutes) provide no consequences for the nursing home’s refusal to comply with the statute.

After service of the pre-suit notice, nursing home operators have 75 days to review the claim.  At the end of this period, the operators, or their insurers, are supposed to provide a response either rejecting the claim or making a settlement offer.   The nursing homes almost never do  this as a failure to respond is considered the same as a rejection.

After the 75 day period expires, the statute requires that the parties mediate the case.   This provision is almost uniformly ignored by the nursing homes, and, again, it is because the statute provides no consequence for failing to do so.

In summary, throughout the entire statutory pre-suit process, the nursing home operators do essentially nothing and the injured victim spends an extraordinary amount of time and money for no reason.  The delay alone is a major injustice as victims of nursing home abuse and neglect tend to be elderly or infirm.  Further, after months of this needless delay, nursing home staff  members are no longer as able to recall all of the facts surrounding the resident’s situation.

All of the benefits supposedly provided by the statute – information sharing and an early mediation – are erased by a statute that contains no teeth.   It is time for the statute to be repealed. Continue reading

Early this morning, a female resident of a Jacksonville nursing home died after falling from her bed.  The incident occurred at the Woodland Grove Health and Rehabilitation Center near Belfort Road on Jacksonville’s Southside.  The Jacksonville Sheriff’s Office is investigating the incident as an accident.  Florida’s Agency of Healthcare Administration will also investigate the matter.

The Centers for Medicare and Medicaid Services ranks all nursing homes that accept payment from Medicare on a scale of one to five stars.  Overall, Woodland Grove Health and Rehabilitation Center scores three out of five stars and scores a two out of five with respect to health inspections.   It is a 120 bed facility owned, in part, by Greystone Healthcare Holdings, which has 26 nursing homes in Florida, with one in Jacksonville, one in Fleming Island (Orange Park), two in Daytona Beach and one in Starke.

Falls are one of the leading causes of injury and death of nursing home residents.  According to the Centers for Disease Control and Prevention, a typical nursing home with 100 beds will report between 100 and 200 falls per year.  In addition, falls are often not reported.  Between 50% to 75% of nursing home residents will experience a fall each year.  Roughly 35% of falls in nursing homes involve residents who cannot walk.

Not only are falls common, the consequences can be catastrophic.  Annually, approximately 1,800 people die as a result of a fall in a nursing home.  Falls also cause serious life-changing injuries including arm, leg and hip fractures.  The immobility that results from such a fracture can lead to functional decline that greatly shortens a person’s lifespan and diminishes his or her quality of life.

Falls in nursing homes have a host of causes including muscle weakness, cognitive problems, changes in medication, wet floors, a nursing home’s failure to provide assistance when transferring from a bed to a wheelchair or toilet, incorrect bed height and improper or missing assistive devices.

There are many ways that nursing homes can reduce the risk of falls.  First and foremost, each resident must be screened for their fall risk.  Residents with an increased fall risk require care plans that put in place appropriate safeguards.  Some residents will require a one person or two person assistance with transfers to and from the bed and toilet.  Others require assistive devices when moving around such as a cane, walker or wheelchair.

The facility itself must also be scrutinized to make sure that hand rails are in place in bathrooms, floors are level and clean and that call buttons work.  Socks, slippers and shoes should have non-slip surfaces.  Beds should be lowered for persons will a high fall risk and cushioned mats should be placed around the bed to minimize any injury that may occur.  Bed rails or anti-roll cushions should be used for persons at risk for falling out of bed.  Residents should be educated regarding common scenarios that lead to falls and how to avoid them.  Finally, the residents should receive physical therapy and nutrition sufficient to keep them as strong and able as possible.
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A video of a resident on resident beating that lasted for over two minutes finally culminated in the state shutting down a beleaguered assisted living facility in Williston, Florida.  Williston is located about 20 miles southwest of Gainesville. The video shows an 86 year old man being punched more than 50 times by a 52 year old resident.  The 86 year old suffers from dementia.  The 52 year old has a history of mental illness and aggression.  During the beating, there were no staff members present in the common area where the incident occurred.  Furthermore, no one was assigned to monitor the surveillance camera that captured the incident.

Florida’s Agency for Heathcare Administration (“AHCA”), which regulates both nursing homes and assisted living facilities, sanctioned the Good Samaritan Retirement Home 17 times over the last 5 years and fined it in excess of $70,000.00.  Despite these measures, the assisted living facility remained in business.

One month after the beating, a female resident fell in the parking lot and was neither taken to the hospital nor provided any medical treatment.  Later that night, the woman was found non-responsive and blood-soaked.  She later died at the hospital.  After that incident, AHCA put in place a moratorium preventing the assisted living facility from accepting new residents; however, it was allowed to continue to operate with the residents already living there.

Two weeks later, another incident occurred which resulted in the arrest of an administrator at the assisted living facility. On December 7, one of the residents had a medical procedure and had to be closely monitored to watch for changes in condition.  Over the next few days, staff reported to the administrator that the resident had deteriorated; however, the administrator took no responsive action.  He was charged with neglect of the elderly.

Citing additional concerns and medication errors, AHCA finally shut down the facility effective December 23, seven weeks after the videotaped two minute beating occurred.  Residents and their families are understandably frustrated by the lack of a more timely response by the state.

The bottom line here is that you cannot rely on the state to vet a nursing home or assisted living facility for you.  If you or a loved one is in need of assisted living or a nursing home, it pays to do your own homework.  As a starter, for nursing homes, we recommend you review the five star rating system created by the Centers for Medicare and Medicaid Services.  Next, you should visit the nursing home or assisted living facility.  While there, you should do your best to observe whether: the facility is clean; whether the facility has an unpleasant odor; whether there are common areas that meet your needs; and whether the staff is qualified to meet your healthcare requirements.  Continue reading