Jacksonville Injury Attorney Blog

When a nursing home resident is injured in Florida, Florida Statute § 400.147, requires that the nursing home prepare an incident report.  While nothing in the statute directs the type of information that must be contained in the incident report, obtaining the report can shed light on what happened to cause the incident.

Florida Statute § 400.147 not only requires that a nursing home prepare an incident report, it specifically provides that the report is discoverable.  Typically speaking anything that is “discoverable” can be obtained once suit has been filed.

Unfortunately, courts interpreting this statute have ruled that the reports are protected from discovery as work product. Tampa Medical Associates, Inc. v. The Estate of Torres, 903 So.2d 259 (Fla. 2^nd DCA 2005). This means, that in order to obtain the reports, a lawyer prosecuting the nursing home abuse claim in Florida must prove a need for the report and that he or she faces undue hardship without it.  Undue hardship focuses on whether there are other ways to obtain information about how the incident occurred.

Proving need and undue hardship can be accomplished in cases where witnesses cannot be found or if the witnesses cannot recall what happened.

Nursing home staff members have usually been well trained to keep the description of an incident entered into the nursing notes extremely vague.  For example, nursing notes may describe an incident as “resident fell, leg pain, sent to hospital for evaluation.”  Because of such generic charting, the resident’s representatives are often left in the dark about what caused the fall.

This problem is compounded by several factors.  First, nursing home residents often suffer from some sort of cognitive deficits, whether it be by reason of dementia, Alzheimer’s disease or simple age-related cognitive decline.  Because of this, residents are often uncertain about how the incident occurred.  In wrongful death cases, there is obviously no input that can be provided by the resident.

The next concern is that nursing home claims are subject to a pre-suit process.  Obtaining records from a nursing home can take forty days or more as the nursing home is given thirty business days to produce the records of a former resident.  On top of that, nursing homes often fail to provide all of the records, resulting in even more delay as the resident’s attorney must determine what is missing and inform the nursing home.  As delay is on their side, nursing homes are often slow to respond to such requests.

Once all the records are obtained, the attorney must then have the matter reviewed by an expert witness, usually a registered nurse.  Only if the expert finds that the nursing home failed to meet the standard of care does the attorney then have the ability to initiate the seventy-five day pre-suit process.  Once suit is filed, it takes at least several months to take the first deposition.

Furthermore, nursing homes have very high employee turnover.  This means that in order to take the depositions of former staff members, those individuals must be located and served with a subpoena to appear.  It gets even worse as the nursing home will usually refuse to give the names of staff members who were working on the wing and shift in question.  If so, a motion to compel must be filed, with a hearing set weeks or months out to get the names.

In all, the first depositions are often not taken for more than a year after an incident occurred. After such a lengthy delay, the nursing home staff members commonly assert they can no longer recall any details about the incident.  Our Jacksonville nursing home abuse attorneys find that this happens in almost every case to some degree.

Once all of the available witnesses have been deposed, the attorney can then demonstrate to the judge that he or she was unable to obtain the information through other means and that the incident report is necessary to determine what happened.  Hopefully, the judge will agree and require the nursing home to produce the report.

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File this one under “believe someone the first time they show you who they are.”

Across the country, the nursing home industry has been lobbying for immunity from Covid-19 claims.  In fact, Florida’s governor is  considering such a proposal right now.  Immunity means that a nursing home can neglect your loved one and unnecessarily cause his or her death and have no consequences for doing so whatsoever.  None.

What is even more preposterous is that some states are also providing immunity for nursing homes that fail to keep resident records currently required by law.  Imagine that your loved one dies from Covid and you get no explanation from the nursing home as to what happened and there no records to review.  That’s it – your inquiry is over.

Highlighting this problem is that nursing home residents are our most vulnerable citizens, they need more protection, not less.  So far in Florida, Covid deaths in nursing homes represent 20% of all Covid deaths in the state.

Nursing homes that fail to take even the most basic precautions to prevent infections would have no consequences for doing so.  Failing to use PPE, failing to educate staff on simple infection protocols, failing to test and isolate sick residents – you name it – its open season.

In all but the absolute worst circumstances, they wont have any criminal responsibility either.  No repercussions whatsoever.  Sound like a good idea?  Has this industry demonstrated it doesn’t need oversight?

Are there nursing home operators who are conscientious and will do a good job?  Yes, and they don’t need protection.

Let me give you an example, the Centers for Medicare and Medicaid services rank every nursing home in the country that accept Medicare as a form of payment.  The ranking system is from one to five stars and is based on a host of categories relevant to resident health and safety.  Our Jacksonville nursing home abuse attorneys have brought claims against every one star facility in the greater Jacksonville area and, in some instances, we have brought multiple wrongful death claims against the same nursing home.  In contrast, to date, we have not handled a single claim against a five star facility.  Not one.

When we were not in a crisis, how did some of the nursing home operators act?  In other words, “who have they shown us to be?”

The cases handled by our Jacksonville nursing home neglect lawyers tell volumes:  a woman who died unnecessarily from a ruptured intestine after nursing home staff ignored weeks of diarrhea; a 52 year old woman who died because the nursing home refused to provide her with medication because the medication was too expensive; and a woman who died after her tracheostomy tube came out and no one at the nursing home knew it needed put it back in in order for her to breathe.  In all of these cases, the nursing homes were understaffed and its employees were poorly trained.

How will we feel when we learn that the nursing homes with one or two stars are the ones with the highest rate of Covid infections and Covid deaths?  I guarantee that there will be a positive correlation.  Is that okay?  Do those operators deserve immunity?

Also, don’t buy it when they try to tell you they don’t get enough money from the government to properly take care of people.  It is not true. One star facilities get paid exactly the same amount per resident as five star facilities. Continue reading

The coronavirus presents new and challenging concerns for many sectors of our society.  This is all the more so with nursing homes. Because the virus is easily spread among people living in close proximity, and because it is especially deadly for older persons with health issues, nursing homes provide fertile ground for catastrophe.  As a stunning example, a Life Care Center nursing home in Seattle has had thirty residents test positive for the virus with another nineteen having already died.

Viral infections in nursing homes are nothing new; however, one big variant is that there is no vaccine currently available for the coronavirus.  Despite these challenges, nursing homes are required to take all measures possible to avoid the infection and spread of any virus.

It is not acceptable for a nursing home to claim that it cannot control the spread of the coronavirus because there is no vaccine.  As detailed below, nursing homes in Jacksonville are already routinely cited for failing to implement standard infection control measures.  This means that nursing home staff are not properly trained in preventing the spread of disease.  The result is that infection is spread by: unwashed hands; gloves used by staff on more than one resident; insufficient isolation protocols for contagious residents; improper housecleaning and laundry service; and a lack of training to identify residents suffering from a contagious illness.

Simply put, when you add a pre-existing wholesale lack of preparation with the challenges presented by a new illness, you get a disaster that could have been prevented or minimized.  The coronavirus was not unforeseeable.  To the contrary, new viruses appear all the time, with recent examples including SARS, MERS, Zika, the bird flu and the swine flu.  In fact, the coronavirus presents the exact scenario that infection control measures are designed to address.

In the greater Jacksonville and Northeast Florida area, fifty-two of the nursing homes have been cited for insufficient infection control measures. One of the measures used to rank nursing homes by the Centers for Medicare and Medicaid Services relate to infection control measures in place at each nursing home.

In assessing the nursing homes’ infection control measures, state inspectors employed by Florida’s Agency for Healthcare Administration focus on:

-transmission precautions;

-training of staff in transmission precautions to be taken;

-use of personal protective equipment;

-hand washing and glove use;

-laundering of linens and towels; and

-measures in place to detect the spread of infections.

Our lawyers have handled many infection cases against Jacksonville area nursing homes including: urinary tract infections; clostridium difficile (“C. diff.”) infections; pulmonary infections; scabies; and infected bedsores.  One thing we have noticed in almost every infection case is that signs and symptoms of the infection were overlooked or ignored.  With elderly and infirm people, it only takes a few days for an infection to turn into deadly septic shock.

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One of the most common types of nursing home abuse cases that our lawyers handle involve bedsores.  Bedsores, also known as decubitus ulcers, form when bony prominences of the body are subjected to prolonged pressure with a mattress, bedding or a medical device.  Most commonly, bedsores occur on the sacrum, which is the lower back just above the buttocks.  Other common locations for bedsores include the feet, ankles, toes and elbows.

Bedsores can be horrific. If not treated, they can lead to unrelenting pain, disfigurement, hospitalization, surgical procedures, severe infection and death.  Our Jacksonville nursing home abuse attorneys have seen cases of bedsores so large and deep that the affected body part is hard to recognize.

A nursing home must take precautions to prevent bedsores and must respond promptly if a bedsore does develop.

First, a resident must be assessed regarding his or her risk of skin breakdown.  The “Braden” assessment scale is the most common method for determining this risk. The Braden scale uses a point system for various risk factors including: the resident’s sensory perception (if a resident has a limited ability to feel pain, he or she will be less likely to move, or seek help moving, in order to relieve the pressure point); exposure to moisture (if a resident is likely to have consistently moist skin in an area, for ex., a person with urinary incontinence who is not using a catheter, that person is much more likely to develop a bedsore in the moist area); vascular status (a resident with restricted blood flow is more likely to develop bedsores); activity levels (residents who are bed-bound are more likely to develop sores than those who are more mobile); and nutrition (residents with nutrition challenges such as kidney disease which limits their protein intake are more likely to develop bedsores).

It is necessary that a nursing home complete the Braden scale for every resident. For those with medium or high risk scores, preventative measures must be taken.  A deflating air mattress can be used which, as it loses air, changes the areas of the body that are impacting the bed.  Further, nutrition must be monitored and blood tests should be performed to demonstrate that protein consumption is optimal (measured by albumin and pre-albumin levels).  Further, changing the resident’s position should be performed on every shift and documented in his or her chart.  Finally, frequent examinations of all skin areas must be made with charting reflecting any areas of concern.  Any areas of concern should be brought to the attention of the resident’s doctor so that all measures can be put in place to prevent the sore from worsening and to promote healing.

For some people, bedsores are inevitable.  Sometimes, when a person is near the end of life, his or her skin may be one of the first organs that fails.  In these circumstances, a nursing home is not negligent if non-healing bedsores develop.  However, it is critical that the nursing home chart all of the steps taken above and have the doctor chart regarding both the efforts being made and the support for the notion that the resident is experiencing bedsores that cannot be prevented or healed despite best efforts.

Unfortunately, the scenarios most often seen by our nursing home neglect lawyers for cases in the Jacksonville area, involve little to no compliance with: performing a proper Braden assessment; creating an appropriate care plan to address skin breakdown risks; following through with required precautions; and responding appropriately once a bedsore develops.  When we review a case, we study the records to look for such entries.  If they are not there, we then have the case reviewed by an expert witness who is a registered nurse.  If that expert finds neglect, then we are ready to start the pre-suit notice process.

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Florida’s Agency for Health Care Administration is the state agency that licenses nursing homes.  The number of nursing homes in the state is strictly regulated through a “certificate of need” program, which greatly limits the number of new nursing homes in the state.  Creating an artificially low number of nursing homes is adverse to the free market and has a very negative effect on consumers of nursing home care.  As lawyers handling nursing home cases throughout the greater Jacksonville area, we have seen this firsthand.

The free market should dictate how many nursing homes are in operation through standard principles of supply and demand.  If there are too many nursing homes and they are having trouble filling their beds, investors will not be encouraged to open new ones.  On the reverse side, if investors see that poor quality nursing homes are essentially full, they will open new nursing homes to provide better care and obtain a significant market share.  This is how almost all commerce happens in the United States,whether it be restaurants, gas stations or new home construction.

However, this is not the case with nursing homes.  The total number of nursing home “beds” in the state is keep at such a low level that even the worst nursing homes have high occupancy rates.  This is because the nicer nursing homes are full and people are left with no other option but to reside in an inferior, underfunded and often outdated facility.

Here in the greater Jacksonville area, AHCA has received the highest number of new applications for nursing homes in St. Johns County, one of the fastest growing counties in the entire United States.  Close to 20% of St. Johns County residents are over 65 years old. There are currently 8 skilled nursing facilities in operation in the county.  Applications have been filed for six additional facilities in the county.  So far, only one application has been approved despite the quickly growing population.

One would think the State of Florida would be very accommodating to its senior population as the state derives significant economic benefit from the huge number of retirees that move into the state.  It is not.  This is because the nursing home lobby dwarfs the voices of the elder population.  That lobby, with its extensive connections and funding, has kept Florida friendly to nursing home operators at the expense of the quality of care provided to nursing home residents.

One example, is that, while the Florida legislature felt the obvious pressure to require that nursing homes carry professional liability insurance, it passed a law requiring such insurance; however, there is no minimum level of coverage required by the statute. Technically, a single dollar of coverage satisfies this condition, and, frankly, this is essentially what we see.

An insurance policy of nominal value, say $25,000.00 of single limit aggregate coverage for multiple nursing homes, is very common and satisfies the requirement yet provides no meaningful coverage whatsoever.  Sound farfetched?  In the majority of cases handled by our Jacksonville nursing home neglect attorneys, there is no recovery made from an insurer.  Rather, the recovery must come from the nursing home operators directly.

Many of the nursing home operators are merely shell companies designed to limit the parent companies’ legal exposure.  A shell company with little to no assets cannot fund settlements or pay verdicts in the event of neglect or abuse resulting in injury or death.  The end result is that the consequences of nursing home neglect are minimized resulting in a decreased incentive to provide high quality care. Continue reading

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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