Sepsis is an infection that gets into the bloodstream. It is a very serious condition and can quickly lead to permanent harm or death if not immediately detected and treated. Unfortunately, it often arises in settings where the medical providers themselves have failed to diagnose, treat or monitor the condition.

Infection Begets Infection

Sepsis develops from existing infections. Most often, it will arise from serious infections. However, a small infection in a vulnerable individual can very rapidly turn into a serious infection. In short, for vulnerable individuals or patients such as nursing home residents and correctional inmates, even small infections should be taken seriously. To avoid these minor infections, even seemingly minor cuts, abrasions or skin openings should be properly treated and monitored to prevent the onset of infection.

The Vulnerable are Vulnerable

Perhaps the most notable vulnerable individuals are bedridden nursing home patients. However, sepsis can arise even in hospitals where patients and families have placed their trust and confidence in the hospital, its medical providers and staff. Less well known or visible to the public is the rampant rates of infections that occur in prisons and jails. In each of these settings, one infection including minor infections may mushroom overwhelming the body’s ability to fight it leading to the onset of sepsis.

Misplaced Trust and Reliance

In these settings, patients are unable to care for themselves. They may be bedridden or otherwise immobile. In nursing homes and hospitals, they may be suffering from very serious infections. Indeed, that may be why they are there. Some infections are acquired while in the medical facility as a direct result of treatment and confinement to the medical facility. These are often referred to as hospital acquired conditions but certainly include nursing homes and correctional settings.

These “hospital acquired infections” include for example pneumonia (misplaced feeding tubes), urinary tract infections (contaminated catheters) and pressure sores/bed sores (failure to turn the patient or provide other preventive equipment). Each of these is considered a very serious act of medical negligence. They are considered “never events” and are often non-compensable under the Affordable Care Act. They also are primary precursors to sepsis.

If It’s Prison, It’s Negligence

With regard to prisons and jails, take whatever level of medical negligence leading to such infections and amplify it by several orders of magnitude. Simply put, if it is prison medical care, it is negligent medical care. The negligence is baked into the contracts, the staffing and the utter contempt with which many medical providers in prisons and jails view their patients. Little infections are trivialized. It would be a laughable matter to view them otherwise. Worse, large infections are ignored until the point at which the patient/inmate is in critical condition requiring immediate transport to and a lengthy stay in an outside hospital. Collins & Collins, P.C. sees these fairly regularly.

Silent Suffering

In the case of nursing home patients and inmates, these are often forgotten individuals with nobody to look after them. Nursing homes and prison medical providers rely and prey upon this fact. In short, they expect to get away with it. Given that sepsis costs Medicare $2 billion per year (this excludes the costs to those falling outside Medicare such as privately insured or uninsured), it is not only morally unconscionable to ignore the suffering of these silenced individuals, its economically imperative to hold the offending medical providers accountable.

Deserving of Investigation

If you or loved one has contracted sepsis in a hospital, nursing home, prison or jail, then you should seriously consider the fact that medical malpractice has occurred. In nursing homes, prisons and jails, it often goes well beyond medical negligence to what may be deemed under the law “reckless, willful and wanton” disregard for the health, safety and life of the patient. In other words, they just did not care one way or another about the patient. To be perfectly clear, it is something that should be investigated with the assistance of an experienced attorney.

The New Mexico Supreme Court revisited the issue of the enforceability of nursing home arbitration agreements following the United States Supreme Court‘s decision in Marmet Health Care Center, Inc. v. Brown. We discussed the Marmet case and how it would affect the New Mexico Court of Appeals‘ decision in earlier posts which are set out below in related readings.

In short, the New Mexico Supreme Court overturned the Court of Appeals‘ decision which had been a very favorable decision for nursing home patients and their families.

Rather than rehash the Court of Appeals‘ opinion, we will address the Supreme Court‘s decision and its rationale.

Unconscionability is an Affirmative Defense

To begin, the court stated that arbitration contracts are contracts and should be treated like other contracts. Under New Mexico contract law, the burden is on the party seeking to enforce the contract to prove the existence of the contract. The burden to prove affirmative defenses is on the party asserting those defenses.

The Court held that unconscionability is an affirmative defense. In this case, the plaintiff asserted that the arbitration provision was unconscionable and therefore unenforceable. The plaintiff argued that unconscionability made the contract void from its inception. The Court of Appeals agreed shifting the burden to the defendant since the very existence of the contract was called into question.

The Federal Arbitration Act

The Court made clear that New Mexico nursing home arbitration agreements are governed by the Federal Arbitration Act. Moreover, the Court found that nursing home arbitration contracts should be treated just the same as any other mandatory arbitration agreement.

The Court held consistent with Marmet that nursing home arbitration agreements could not be singled out for special treatment. However, it is also clear that arbitration agreements would not be given any special advantage over any other contracts.

As a result, nursing home arbitration agreements in New Mexico, including the one at hand here, would be analyzed according to basic contract law principals. Though the burden shifted to the plaintiff, unconscionability remains a defense.

Unconscionability of Nursing Home Contracts

Like any other contract, the arbitration provision must not be unconscionable. The Court reiterated long-standing New Mexico law on the standard for a finding of unconscionability.

The Court stated the standard as follows:

“To evaluate whether a contractual provision is procedurally unconscionable, a court considers the “factual circumstances surrounding the formation of the contract, including the relative bargaining strength, sophistication of the parties, and the extent to which either party felt free to accept or decline terms demanded by the other.”

It seems that a nursing home arbitration provision would almost by definition fail on each of these fronts. However, in light of Marmet, it would appear that the Court had no room to hold as such.

Plaintiffs may still show unconscionability. However, the burden will be on them. In light of the Marmet decision and the decision here, this hurdle has been made much more difficult.

In short, DO NOT SIGN A NURSING HOME ARBITRATION AGREEMENT! Chances are you will be held to its terms.

DISCLAIMER

Related Readings:
Nursing Home Mandatory Arbitration Provisions – Sign at Your Peril!
Nursing Home Arbitration Provisions Must Not be “Unfairly” One-Sided in New Mexico
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse

Recently, in Weiss v. THI of New Mexico at Valle Norte, the New Mexico Court of Appeals looked into whether an arbitration clause in a nursing home resident contract can be used to avoid monetary sanctions awarded by the court in a pending nursing home abuse and neglect lawsuit.

In this case, the plaintiff‘s estate filed a wrongful death lawsuit against the defendant for nursing home neglect. After filing the lawsuit, the plaintiff began filing discovery requests.

Discovery in a personal injury lawsuit is the method where each party is able to request information from the opposing party. It typically takes the form of interrogatories (which are written questions that require an answer under oath), requests for documents and depositions (where a witness answers verbal questions under oath).

Here, the defendant produced some of the discovery requested by the plaintiff, but then began asking for several extensions and failed to produce any additional requested documents.

When the defendant refused to produce the discovery requested by the plaintiff, the plaintiff then filed a motion to compel discovery. A motion to compel is essentially a motion asking the court to require the other party to provide the requested discovery or pay monetary sanctions. In this case, the parties argued the motion to compel and the judge ordered the defendant to produce the discovery requested by the plaintiff.

Around the same time the judge ordered the discovery production, the defendant also discovered that the deceased nursing home resident‘s admission agreement included a clause requiring any disputes be settled through arbitration. As a result, the defendant filed a motion to compel arbitration and end the traditional lawsuit. After filing the motion to compel arbitration, the defendant also chose not to produce the discovery ordered by the judge.

When the defendant still did not produce the requested discovery, the plaintiff filed a motion for discovery sanctions, essentially asking the judge to impose a monetary penalty upon the defendant for failing to abide by the judge‘s order. The judge then denied the defendant‘s motion to compel arbitration, granted the plaintiff‘s motion for sanctions, imposed a $25,000 fine on the defendant and again ordered the defendant to produce the requested discovery.

The defendant appealed the judge‘s rulings. They argued that their motion to compel arbitration should have immediately stopped any obligation they had in the traditional lawsuit. New Mexico law provides that when a court receives a motion to compel arbitration, it should “on just terms” stay the traditional lawsuit until it can make a decision about whether arbitration is required. In other words, the traditional lawsuit does not automatically pause with the filing of a motion to compel arbitration, rather the court is simply required to assess whether the claim is subject to arbitration.

The Court of Appeals determined that the trial court had discretion as to whether it should stay the lawsuit while determining the issue of the arbitration clause. As a result, the defendant had no right to continue withholding the discovery, particularly after they were ordered to produce it by order of the judge. Without proper justification for failing to produce the discovery, the $25,000 fine imposed by the judge was also proper and right.

DISCLAIMER

Related Reading:
Nursing Home Arbitration Provisions Must Not be “Unfairly” One-Sided in New Mexico
Discovery in a Personal Injury Lawsuit: Often Difficult and Expensive but Always Necessary!
Nursing Homes‘ Patient Records Often Neglected and Occasionally Deliberately Falsified

Collins & Collins, P.C.
Albuquerque Attorneys

Many of us have loved ones in nursing homes. In addition to providing daily care, these facilities administer many different medications to their patients. Medication administration is a little different in nursing homes than in other settings since these facilities deal with live-in residents.

In many ways, this makes it easier to ensure that patients aren‘t subjected to medication problems, but medication errors occur nonetheless.

Often, these mistakes pertain to inadequacies in medication monitoring, and according to the Medication Error Quality Initiative (MEQI), they‘re often preventable. When preventable medication errors do occur and a loved one suffers serious personal injuries or wrongful death, you should consult with an attorney to determine if you have a possible claim for nursing home negligence and/or medical malpractice.

How Do Medication Errors Affect Nursing Home Patients?

According to the MEQI, most of the errors that occur in nursing homes fall into two “less serious categories.” In many cases, the medication errors did not reach the patient–in other words, the patient never took the medication. In other cases, the medication error did not harm the patient–in other words, the patient took the medication, but the error was not significant enough to cause an injury. In most nursing home cases, these two types of errors typically account for more than 90% of all medication mistakes.

However, some medication errors can cause serious injuries and even death, and it‘s important to know what leads to these kinds of mistakes.

What Causes These Errors?

For the majority of medication errors, the MEQI attributes them to human factors. These include basic human error, simple mistakes, forgetting, overlooking orders, carelessness, and lack of oversight. In these situations, the medication errors were preventable.

Similar to a hospital setting, a nursing home has medical personnel in various departments. These include physicians, nurses, pharmacists, and pharmacy technicians. In nursing homes, errors across these areas deal primarily with dose omission. This includes overdoses, under doses, forgotten doses, wrong doses, and extra doses. In fact, 75% of all reported nursing home medication errors related to dose omission.

According to the nonprofit group Nursing Home Families, the majority of fatal and serious medication errors from dosage omission concern “adverse consequences.” This refers to situations in which a detail about the patient‘s medical condition, medical and prescription history along with other concurrent medications lead to an adverse reaction with a medication that they‘ve been prescribed. An important factor to keep in mind is that many nursing home residents are more susceptible to adverse consequences from medication errors, since many of these elderly patients are already taking a number of other long-term medications.

How Can Medication Errors be Prevented?

While errors can occur in any of the medical departments associated with nursing homes, all areas are specifically tasked with the important act of monitoring. Monitoring includes continuous observation of patients to: 1) ascertain their responses to treatment, 2) detect complications or adverse consequences, and 3) support their decisions concerning modifying or discontinuing specific medication use.

The pharmacy department has a specific task, which is called a “medication regimen review.” This should consist of a pharmacist‘s “thorough evaluation” of a patient‘s medication regimen in order to prevent, identify, report, and resolve any medication errors or other irregularities in the patient‘s treatment.

Since nursing home residents live at the facility where they receive medications and other care, there‘s a special burden on health-care providers to closely monitor each patient‘s medication record. When medication records are adequately monitored, studies show that dose omission and related adverse consequences significantly decrease.

Do Not Delay if a Loved One has Been Harmed by Nursing Home Medication Errors!

These cases can be complex and there are unique requirements and deadlines associated with these claims. If you or a loved one has been negatively affected by a nursing home medication error, it is advisable to immediately seek the assistance of an attorney experienced in nursing home negligence and medical malpractice claims to make sure that your rights are protected.

DISCLAIMER

Related Reading:
Hospital Medication Errors More Common Than One Might Think
Are Guns Safer than Hospitals?
Nursing Home Abuse and Medication Issues

Collins & Collins, P.C.
Albuquerque Attorneys

Many nursing home contracts, which a new resident is required to sign, contain a binding arbitration clause.

An arbitration agreement is a contract stating that, if a dispute arises, the parties will not file a lawsuit in a traditional court of law. Instead, with an arbitration agreement, the parties will submit their dispute to an arbitrator, which is a neutral third-party whose decision will bind the parties.

Arbitration provisions in any consumer setting rarely if ever favor the consumer. They are always to the advantage of the company. After all, why else would companies, particularly nursing homes, fight so hard to enforce them?

In short, they are always one-sided. It is just a matter of when they go too far (which is quite far in light of recent United States Supreme Court case-law) that they are considered “unfairly” or “unreasonably” one-sided. Fortunately, in New Mexico, the Courts still look after consumers and will draw the line to protect them.

The New Mexico Court of Appeals once again reviewed the propriety of mandatory arbitration agreements for nursing home residents in Ruppelt v. Laurel Healthcare. In this case, the plaintiff‘s father was a resident in a nursing home when he died. The plaintiff alleged that the nursing home‘s negligence led to her father‘s death. When the plaintiff filed the nursing home negligence lawsuit, the nursing home sought to have the case dismissed relying on the arbitration provision in the admission contract.

If a binding arbitration agreement is enforceable, then a lawsuit is precluded. However, if the terms of a contract are unconscionable, the court may strike the unconscionable terms and refuse to enforce them. New Mexico Courts have in the past been quite hard on binding arbitration provisions in nursing home contracts placing the burden on the nursing home to prove the fairness of the provisions in Strausberg v. Laurel Healthcare Providers. The United States Supreme Court on the other hand completely cut the legs from this protection in Marmet Health Care Center v. Brown.

However, in the Ruppelt case, the New Mexico Court of Appeals has again put the burden on nursing homes. Specifically, in New Mexico, a contract clause may be deemed unconscionable if one party is forced to submit its claims to arbitration but allows the other party the option of filing a lawsuit in a traditional court of law.

In the Ruppelt case, the arbitration agreement was completely one-sided (as arbitration agreements almost always are). Under the agreement, disputes pertaining to collections and patient discharge could be brought via lawsuit in a traditional court of law while patient claims were forced to arbitration.

While either party could technically bring a lawsuit for collections or patient discharge disputes, it is very unlikely for a patient to bring such a lawsuit. On the other hand, collections issues and patient discharge disputes are among the most common types of lawsuits brought by nursing homes. In essence, the arbitration agreement forces a patient to bring his or her most likely dispute for negligent care in arbitration while allowing the nursing home to bring its most likely disputes in a court of law. For this, the court found that the provision was “unfairly one-sided.”

By limiting the patient‘s access to the courts, while allowing free access for itself, the nursing home created an unconscionable arbitration agreement. When a contract clause is found to be unconscionable, the court then has the option to either simply void that term and enforce the remaining parts of the contract, or voiding the full agreement.

In this case, the clause allowing collections and patient discharge disputes to be brought in court was central to the arbitration agreement. Simply voiding all offending clauses might affect the central provisions of the agreement between the parties. Therefore, the entire arbitration agreement was invalidated by the Court.

DISCLAIMER

Related Reading:
Nursing Home Mandatory Arbitration Provisions – Sign at Your Peril!
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

Financial exploitation of a resident is one of the many ways in which a senior can be abused while under the care of a nursing home. Stories are not uncommon of elderly patients being swindled out of their life savings by a professional caretaker or nursing home employee.

There are many forms of financial abuse, most of which are difficult to detect and may go on for years. In order to protect yourself or a loved one from financial exploitation and abuse in a nursing home facility, it is important to know the types of financial abuse and the warning signs to look out for.

Financial exploitation or abuse is the unlawful or improper use of a senior‘s assets, funds, or property. This type of abuse can take many forms and can range from the theft of pocket change and personal belongings to the appropriation of a senior‘s home and bank accounts.

In some cases, the senior is unaware of the situation; in others, the elderly patient is manipulated into giving away their property, possessions, and money. Sometimes it will involve a one-time theft of a possession in the resident‘s room, while other times a staff member builds a relationship for years in order to gain control of the patient‘s savings accounts or convince the resident to change their will in their favor.

Other examples of financial exploitation include staff members cashing residents‘ welfare, social security, and other checks without authorization; gaining power of attorney over the resident; and forging a patient‘s signature in documents and contracts. In many cases the staff member will use deception, coercion, threats or manipulation to gain control over part or all of a resident‘s finances. As our seniors are in an extremely vulnerable position, especially when residents of a nursing home, it is important to be vigilant for warning signs that a love one is being financially exploited.

There are several red flags that may indicate that a nursing home resident is being financially exploited or abused. Obvious signs include forged signatures on important documents or checks and the sudden disappearance of valuable possessions. Other forms of financial abuse are more difficult to identify. These include sudden, unexplained, or frequent withdrawals from a bank account; the appearance of new names on the resident‘s bank signature card; frequent, unusual withdrawals with the resident‘s ATM card; and new loans or mortgage contracts. Other signs to look for are recent changes to a resident‘s will, deeds, or trust; the provision and payment of unnecessary services; and unexplained disappearance of funds.

There are several things that a family member can do if they suspect elder abuse of any kind, including financial exploitation. A first step should be to verify the story with the resident and gather the pertinent documents and records. If there is a danger to the safety of the resident, consider removing them from the facility. If it clear that a crime has been committed, it is always important to inform the police and district attorney and file a complaint with the Adult Protective Services Division of the New Mexico Aging and Long Term Services Department.

Discovering and reporting financial exploitation of a nursing home resident can be complicated. It is important to seek out the assistance and guidance of those charged in the state with the protection of elders. There is no reason to suffer or allow your loved one to suffer alone at the hands of an abusive or exploitative facility or staff.

DISCLAIMER

A U.S. Supreme Court ruling earlier this year regarding mandatory arbitration provisions in nursing home contracts will most likely overrule an earlier New Mexico case that represented a victory, albeit a small one, for individuals injured in a nursing home.

In general, nursing home admission documents contain mandatory arbitration clauses, under which patients give up their right to file a personal injury lawsuit against the nursing home if that nursing home commits negligence or abuse.

Taking advantage of the fact that people are extremely vulnerable when entering a nursing home, these institutions attempt and generally succeed in getting patients to sign away rights that they would otherwise not had they not been in a vulnerable and stressful situation.

Recognizing this unequal bargaining position, the New Mexico Court of Appeals ruled in Strausberg v. Laurel Healthcare Providers that nursing homes that sought to enforce arbitration agreements had the burden of proving that the arbitration agreement is not unconscionable. This was a departure from previous case law regarding commercial transactions where the party challenging the validity of an arbitration agreement has the burden of proving the agreement is unconscionable.

While the New Mexico Court of Appeals decision was thought to be a minor victory for victims of negligence or abuse at the hands of a nursing home, it was short-lived. This ruling is likely to be affected and preempted by a February 2012 Supreme Court per curiam opinion regarding the validity of arbitration agreements under the Federal Arbitration Act (FAA).

In Marmet Health Care Center v. Brown the U.S. Supreme Court addressed a West Virginia law that declared arbitration agreements for personal injury or wrongful death claims against nursing homes unenforceable. The Supreme Court of Appeals of West Virginia held that that the state law against arbitration agreements was not preempted by the FAA. The Supreme Court disagreed.

The Marmet case made it clear that any state law that declared nursing home arbitration agreements for personal injury and wrongful death claims unenforceable was preempted by the FAA and previous Supreme Court decisions. The Supreme Court also stated that once that Court had interpreted a federal law, lower courts did not have the power to contradict or fall short of implementing the rule as interpreted by the Court.

Pursuant to the FAA, any and all arbitration clauses in commercial contracts are “valid, irrevocable, and enforceable,” unless the arbitration clause is unconscionable. Moreover, the Supreme Court has held on several occasions that the FAA preempts state laws that prohibit arbitration clauses, and did so again in Marmet.

In light of this holding, the previous New Mexico ruling in Strausberg is likely to be overruled. Even though New Mexico law does not prohibit arbitration agreements outright in nursing home contracts, the ruling in Strausberg may be seen to be at odds with the holding in Marmet. Nursing homes will likely argue that having to prove an arbitration agreement is not unconscionable is inconsistent with the FAA rule that arbitration clauses are presumed “valid, irrevocable, and enforceable.”

Should this occur, it is more important than ever that residents and family members refrain from signing any arbitration agreement in a nursing home document. It is illegal for the nursing home to refuse admission for refusal to sign the arbitration agreement. If a nursing home is trying to force the agreement on you or a loved one, it is highly advisable to speak with an elder law attorney.

DISCLAIMER

Related Reading:
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse

Collins & Collins, P.C.
Albuquerque Attorneys

Most people who admit a loved one into a nursing home do so because the senior requires constant care that they are not able to personally provide. The nursing home undertakes this responsibility, which includes supervising and ensuring that the resident does not put him or herself in a dangerous situation. Nonetheless, many residents manage to wander or “elope” from the nursing home grounds, which often puts them at high risk for injury, attack, exposure, and even death.

Even though often used interchangeably in the nursing home industry, “elopement” and wandering are slightly different. Elopement occurs when a resident who is unable to protect him or herself goes off nursing home grounds unsupervised and encounters some form of harm or danger. Wandering occurs when a resident with dementia, Alzheimer‘s, or other psychiatric diagnosis encounters a dangerous situation while moving around the nursing home facility unsupervised.

There is no single set of characteristics that indicate that a nursing home resident is at risk for wandering or elopement. However, there are several factors that a nursing home must take into account when assessing a resident‘s risk for eloping or wandering. The resident‘s age and mobility should always be considered. It is more likely for a highly mobile, younger resident to elope or wander than it is for a resident who is recovering from hip surgery. It is also more likely for a resident with dementia or other psychiatric diagnosis to stroll off and put him or herself in harm‘s way. Also, previous incidents involving wandering or eloping can be indicators that the resident is prone to doing it again.

If a patient is at a high risk for wandering or elopement–say because she suffers from dementia, has no mobility issues, and has eloped or wandered several times in the past–the nursing home may be required to assess this risk and formulate a plan to prevent it. Under the federal Nursing Home Reform Act (Act), 42 USC § 1395I-3, a nursing facility is required to conduct an initial assessment of a resident‘s capabilities, medical issues, and needs within a few days of admission. If the patient is at a high risk for wandering or elopement, this should be noted on the initial assessment. Based on the assessment, nursing facilities are required to formulate a comprehensive care plan after the assessment is finalized. Subsequent assessments should be conducted annually and immediately after there is a significant change in the mental or physical condition of the resident. An episode of elopement or wandering that has resulted in an injury or a high risk of an injury for the patient should prompt an assessment and a new care plan that ensures that the patient does not repeat his or her actions.

Recurring incidences of elopement or wandering resulting in a resident‘s injury or death may signal nursing home neglect and/or abuse. Wandering and elopement should generally not occur, and when it does, should be detected early enough to avoid injury to the resident if the nursing home follows certain principles and procedures. These include hiring the adequate staff to supervise all of the nursing home residents; train staff properly on supervising residents; install alarms, cameras, and other surveillance devices at exits and entrances as well as near restricted or dangerous locations; adequately assess the risk for elopement or wandering of each individual resident; and having a quick-response plan in place.

While it is true that nursing homes must walk a fine line between not severely restricting residents‘ freedom of movement and keeping them safe, it is the nature of the care that they offer and something that should always be a priority for staff and administrators. Failure to properly guard against wandering and elopement may constitute neglect on the part of the nursing home. In cases where the patient is injured, this neglect may give rise to a personal injury claim.

If you loved one has been seriously injured as a result of wandering or elopement in a nursing home, it is important to contact an experienced personal injury law attorney right away to fully protect the rights and safety of your loved one.

DISCLAIMER

Related Reading:

Collins & Collins, P.C.
Albuquerque Attorneys

Dehydration and malnutrition have become so commonplace in nursing homes that many have called them “the silent killers.” According to a study by The Commonwealth Fund, 35 to 85% of nursing home residents suffer from malnutrition, and between 30 and 50% are underweight. Another study published by the Journal of the American Geriatric Society found that an alarming 39 out of 40 residents studied did not receive adequate fluids for every day that the study was conducted. The Centers for Disease Control (CDC) estimated that as many as 208,000 patients over the age of 65 were released from short-term hospital stays with a primary diagnosis of dehydration.

Despite Federal and state laws requiring that nursing homes provide for their residents‘ nutritional needs, malnutrition and dehydration continue to plague the nursing home system. Under the Nursing Home Reform Act of 1987, 42 CFR § 483.25, nursing homes are required to ensure that a nursing home resident “maintains acceptable parameters of nutritional status,” measured by weight and protein levels. They are also required to provide a resident with a therapeutic diet if nutrition becomes an issue. Additionally, if a resident is unable to care for him or herself, the nursing home is required to provide all of the services necessary to ensure proper nutrition.

There are many causes for dehydration and malnutrition in nursing homes. Many nursing home residents often cannot take care of themselves and in some cases need help eating and drinking. According to the Commonwealth Fund study, 40 to 60% of residents suffer from dysphagia, or swallowing disorders. Dysphagia may occur as a result of Parkinson‘s disease, strokes, dementia, or other neurological disorders. Additionally, 60 to 70% of nursing home residents suffer from some form of cognitive impairment, which in many cases involves patients who require assistance eating.

There are several other reasons why a nursing home resident may become dehydrated or malnourished. In certain cases, depression and cognitive impairment may lead to weight loss. In others, dental health problems that are not properly managed may make the patient unable to eat or limit their diet. In yet other cases, cultural or ethnic preferences may not be available in the nursing home‘s restricted menu. Some medications, including anti-depressants and high blood pressure medicine act as diuretics; other medications may make a patient sweat more.

There are several dangers involved with malnutrition and dehydration, especially among the elderly. Besides aggravating many existing ailments, malnutrition and dehydration can lead to tooth decay, high blood pressure, and even death. Dehydration can also cause kidney failure, coma, and electrolyte abnormalities.

Under the Nursing Home Reform Act, failure to detect and treat malnutrition and dehydration is a form of neglect. Several studies have suggested that incidences of malnutrition and dehydration can almost always be attributed to understaffing and poor supervision. Solutions as simple as having an adequate number of staff that are properly trained to supervise resident‘s food and fluid intake and routinely offering a resident fluids or food could avoid a large number of these situations and save lives.

While it is good news that these conditions are almost always preventable, it is also alarming to know that all of the injuries and even deaths that resulted from these conditions should not have happened had the nursing home not been negligent. If your loved one has suffered similar injuries as a result of the neglect of his or her nursing home, it is important address the issue immediately with the staff. If this does not fix the problem or severe injuries have already been suffered, then you should consult with an experienced personal injury attorney to determine whether or not there might be a nursing home negligence or abuse claim.

DISCLAIMER

The last thing that a person wants to worry about when they admit a loved one into a nursing home is the possibility of abuse through medication. There are several types of nursing home abuse that involve medication, and it is important to be aware of them to be able to identify and stop this practice.

Many common forms of abuse in nursing homes are related to medication and its administration to the resident, all of which constitutes negligence with potential legal liability. Sometimes patients may be overmedicated, receive medication in the wrong dosage, or be given the wrong medication. In other cases, food and medication allergies are overlooked due to the negligent failure to communicate among staff members regarding medication.

Overmedication, sometimes also referred to as chemical restraint, is often an intentional form of abuse. Overmedication occurs when nursing home staff provides patients with non-prescribed medication or higher doses of prescribed medication in order to pacify the patient. This of course makes the jobs of nursing home staff easier since they need provide little care to incapacitated patients.

Several studies show that an alarming number of nursing homes use chemical restraint to control unruly or problematic patients. In 2010, a California nursing home director was charged with providing anti-psychotic drugs to difficult patients, resulting in the death of three residents. According to the FDA, an estimated 15,000 nursing home residents die each year as a result of unnecessary and off-label use of anti-psychotic medication.

In other cases, the nursing home staff gives residents the wrong medication. This is usually unintentional and the product of understaffing and failure to train and keep accurate records. This practice can cause several serious complications for the patient that may even lead to death.

Administration of the wrong medication presents several dangers. On the one hand, when a patient is given the wrong medication, he or she is not being treated for the condition that they have, and on the other hand, the medication they are being given may harmfully interact with other drugs.

Many cases involving medication entail negligent documentation and communication among staff members. In certain cases, staff members fail to chart the administration of medication causing repeat dosing. In other cases, staff document giving a patient medication when in fact they did not. In still other cases, there is a failure in documenting all of the medications given to a patient, causing harmful drug interactions. Finally, all the medications may be perfectly documented yet the potential serious and sometimes life threatening interactions may be ignored.

If you suspect that a love one is being overmedicated, being given an incorrect medication, given the wrong dosage, exposed to dangerous interactions, over-medicated or otherwise suffering from medication errors, you should address the situation immediately with the nursing home administration.

The first step is to ask to see medication logs and order blood tests. Unfortunately, the next step is often contacting an attorney. This is often the only thing that will get the facility‘s attention. The New Mexico Attorney General‘s Elder Abuse Division is a good place to start. If your loved one has been harmed by medication errors, it may then be time to speak with an experienced personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

DISCLAIMER