Jacksonville Injury Attorney Blog

We have previously blogged about the unfortunate frequency of sexual assault in nursing homes or skilled nursing facilities.  Sadly, this week a news story has grabbed headlines that highlights this problem.  A woman who has been in a vegetative state since she was three years old has recently gave birth in late December of 2018.  Given her condition, it is impossible for her to have consented to sexual activity.

Investigators ran DNA tests on the people working at the nursing home and found a match with a male licensed practical nurse who cared for the impregnated woman.  The thirty-six year old man has been arrested and charged with sexual assault.  That man has worked at the nursing home since 2011.  Police are uncertain at this time if there are other victims.

Police are also investigating whether the facility was aware of the assault.  The chief executive officer of the company that operated the nursing home has resigned.  In addition, one of the doctors that cared for the woman has resigned, and another doctor has been suspended.

The concerns involving the nursing home are not limited to the sexual assault itself as the nursing home was not even aware that the twenty-nine year old woman was pregnant until she unexpectedly gave birth.  This raises a host of concerns regarding how closely her health and conditions were being monitored.

Here in Jacksonville, the recent rape of a nursing home resident also made headlines.  No arrests have been made in that case and it is uncertain whether the perpetrator worked in the nursing home or entered posing as a visitor.

Residents of Florida nursing homes have, according to both common sense and Florida’s Nursing Home Resident’s Bill of Rights, the right to a safe environment.  More specifically, the Bill of Rights provides, in part: “Every resident of a facility shall have the right to: Live in a safe and decent living environment, free from abuse and neglect.”

Obviously, sexual assault is a violation of this right and nursing homes must take sufficient preventative measures.  First, every employee must be screened for any prior arrests or convictions.  Their prior employers must be consulted to make sure there were no concerns regarding the individual’s work history.  while the employee is working at the nursing home, all complaints of inappropriate behavior must be taken very seriously even if the victim is not certain of details as many nursing home residents suffer from cognitive impairment.  This is one reason why such perpetrators prey on the elderly.

These background investigations must also be performed for contract workers and independent contractors who do not work directly for the nursing home, but are nevertheless brought in to provide care.   Nursing homes commonly employ nurses and nurse assistants from  agencies if the nursing home is short on staff.  Due to the high level of employee turnover in Florida nursing homes, staffing agencies are commonly used to fill in gaps to meet statutorily mandated staffing levels.

In addition, nursing homes must not allow persons to enter the facility who have no business being there.  All points of entry must be conspicuously videotaped.  In this manner, potential assailants are made aware that evidence of their entry has been recorded.

Furthermore, resident on resident sexual assaults can occur in nursing homes.  For this reason, it is necessary that nursing homes be aware of the criminal past of residents before admission and must respond appropriately to any occurrences of sexual or aggressive misbehavior.  Finally, the nursing staff must monitor residents frequently so that a perpetrator does not have the time necessary to commit a sexual assault without being detected.  Continue reading

A ninety-four year old woman reported being sexually assaulted by an unknown male at the Brookdale Atrium Way 2  nursing home in the Regency area of Jacksonville last April.  According to the victim, the perpetrator was wearing scrubs.  At the hospital, it was confirmed that she was sexually assaulted.  According to her lawyers, DNA testing suggests that the assailant may not have been an employee of the nursing home.  No one has been arrested.

The woman has hired lawyers to file a lawsuit for nursing home neglect. Notably, two other residents have reported being assaulted at the same nursing home this year, including one other rape and one attempted rape.  Descriptions of the perpetrator in each instance have been vague.  Family members and residents have expressed concerns and questions remain whether they were not fully informed of the nature of the attacks.

Assuming the assailant was not an employee, the woman’s lawsuit will focus on the security measures taken to ensure strangers do not walk into the nursing home without being screened – which can prove to be a difficult task for nursing home operators.   If it turns out that the assailant was an employee, the lawsuit will focus on whether that employee was appropriately screened and whether there were prior incidents or complaints regarding his behavior.

Nursing homes can provide an environment attractive to opportunistic predators.  There are a lot of people coming and going in a nursing home including family members, medical providers that are not employed by the nursing home, employees brought in from a temp agency, and private nurses and assistants hired by family members.  In addition, there is a lot of employee turnover at nursing homes so new people in scrubs are a common sight.   A person in scrubs can easily walk into almost any nursing home, past the information desk and into a resident’s room.

Sexual assaults in nursing homes are a significant problem.  Elderly people can be targeted due to physical and cognitive infirmities, making getting away with such a crime more likely.  All nursing homes are aware of this potential problem and are charged with the duty to take necessary measures in an effort to prevent sexual assaults.

Generally speaking, Brookdale Atrium Way 2 receives fairly good ratings from the Centers for Medicare and Medicaid Services as reflected on its Nursing Home Compare website, which has assigned it an overall rating of four out of five stars.  It received a “quality measures” rating of five stars, a “staffing rating” of four stars and a “health inspection rating” of only two stars.

“Quality measures” ratings are based on various factors regarding the health of residents including: how often residents have to be sent to a hospital; how often residents have to be sent to the emergency room; the number of residents receiving anti-psychotic medications; and the development or worsening of bedsores. “Staffing ratings” are based on each nursing home’s report of the number of nurses and nurse assistants that worked during a given time frame compared to the number of residents living at the nursing home.  The “health inspection” rating focuses on the safety of the building, food service, medication management, housekeeping and maintenance.  Continue reading

Private nursing homes deserve to make a profit – a fair profit.  Nursing home operators, like those managing any other type of business, take steps necessary to maximize profit.  However, far too often, the methods used to do so run afoul of nursing homes’ statutory and moral obligation to “attain or maintain the highest practicable physical, mental and psycho-social well-being” for their residents.

Many of the expenses in operating a nursing home are fixed – meaning there is nothing the operators can do to decrease them.  Expenses such as rent, food, supplies, and electricity are not easily decreased. On the other hand, staffing is an area where money can be saved; however, often at the expense of the residents.

In the clinical setting, nursing homes typically have registered nurses, licensed professional nurses and certified nursing assistants.  They may also have physical therapists, occupational therapists and speech therapists. The highest expense for a nursing home is staffing and the most expensive employees are registered nurses.

Our Jacksonville nursing home abuse and neglect lawyers see the effects of understaffing in nearly every case we handle.  Most commonly, we see the number of registered nurses cut to the bare minimum. Why does this matter?  It takes at least two years of college to become a registered nurse and many have a four year bachelor’s degree.  In contrast, it takes about one year of schooling to become an LPN.

Florida’s Nurse Practice Act spells out the resulting difference: RNs are able to make assessments of patients’ conditions; while LPNs are not.  This means that an RN has the training and experience to consider what is going on with a nursing home resident and make, or suggest, changes to his or her care plan, medication or treatments.  LPNs, on the other hand, are not trained to make such assessments.

Many people think that the resident’s doctor will make rounds and perform global assessments on a frequent basis.  This is not accurate.  After an initial visit, it is common that doctors only see residents when a concern is brought to their attention.  Without registered nurses performing assessments, a patient’s decline, whether it be from infection, malnutrition or dehydration, often goes unnoticed until it is too late.

We have seen many examples of this here in Jacksonville.  In 2016, we resolved a wrongful death case against a large chain nursing home operator whose employees apparently did not notice its resident had an infection until it had gotten so bad that he was rendered unconscious by sepsis.  He died within a day of being transferred to Memorial Hospital Jacksonville.   Notably, the nursing home could not produce a single nurse’s note for the last week of his life.  Had a registered nurse seen him, his infection may have been caught and treated before he became terminally ill.  That nursing home was severely understaffed, and was found to be especially lacking in registered nurses.  The man was only 61 years old.

Attending doctors will not take up the slack.  It is important to understand that the doctors that make rounds at nursing homes are typically not employees of the nursing homes.  Most residents are assigned a doctor by the nursing home.  The nursing home chooses among several that it has contracts with; however, the doctor is not an employee of the nursing home.  Further, any neglect on the part of the doctor is not attributable to the nursing home.

Florida has standards that require a minimum number of LPNs and CNAs.  A nursing home’s failure to meet these standards can result in a moratorium on new admissions.  In just about every nursing home case we litigate, we find that the nursing home staffed only to the level of these minimums regardless of  how serious the needs of their residents are.  We have also found examples where a nursing home inflated the number of staff performing direct care to the residents in order to make it appear that the standards were met.  Continue reading

As Florida’s largest,  and the country’s sixth largest, nursing home operator, Consulate Health Care operates approximately 77 nursing homes in Florida and approximately 210 nationwide.  Statewide, Consulate has had a spate of regulatory and judicial troubles as outlined by the this article in the Naples Daily News: https://www.naplesnews.com/story/news/special-reports/2018/05/31/neglected-fraud-and-abuse-nursing-homes-florida/542609002/.

Highlighting those troubles is a judgment entered against Consulate in February of this year for $347.8 million arising out of allegations of Medicare and Medicaid fraud.  While that judgment was set aside by the Federal trial Court, an appeal is pending.

In the Jacksonville area, Consulate operates five nursing homes: Consulate Health Care of Jacksonville; San Jose Health and Rehabilitation; Harts Harbor Health Care Center; Consulate Health Care of Orange Park; and Governors Creek Health and Rehabilitation.   None of these nursing homes has received more than 2 stars on a one to five star scale set by the Centers for Medicare and Medicaid Services.  Governors Creek Health and Rehabilitation Center in Green Cove Springs, Florida, has a one star ranking.  The remaining four nursing homes each have a two star ranking.

Medicare ranks every nursing home in the country that receives payment from Medicare on the one to five star scale.  Rankings are based on  criteria including: health inspections; staffing levels; and 16 different quality measures.

Health inspections are conducted by Florida’s Agency for Healthcare Administration.  Approximately once a year, each nursing home is subjected to an unannounced survey.  In addition, AHCA may also survey a nursing home in response to a complaint.  During a survey, the inspectors review random resident records, staffing reports and the nursing home’s policies and procedures.  Inspectors also interview residents and family members.  In addition, building issues, such as cleanliness and fire protection equipment are evaluated.

Staffing levels are assessed based on “per patient day” averaging.  The number of registered nurse, licensed practical nurse and certified nurse assistants employed are broken down on a per patient day average.

The quality measures include: the percent of residents who report moderate to severe pain; the percent of residents with new or worsened pressure ulcers (bedsores); the percent of residents who were given the flu vaccine; the percent of residents given anti-psychotic medication; the percent of residents experiencing falls causing major injuries; the percent of residents with urinary tract infections; the percent of residents who develop bowel or bladder incontinence; the percent of residents requiring an indwelling urinary catheter; the percent of residents who were physically restrained; the percent of residents whose need for assistance with activities of daily living has increased; the percent of residents losing an excessive amount of weight; and the percent of residents suffering from depression.

Here in Jacksonville, our nursing home abuse lawyers have handled three wrongful death cases against Consulate’s Jacksonville area nursing homes.  In comparison, we have never accepted a case against any of the five star facilities in the Jacksonville area.  Continue reading