Nursing Home Information Education Center Articles
- Q: When Should I Consult with a Nursing Home Lawyer?
- Q: What Document Should You Never Sign When Admitting Your Loved One To A Nursing Home?
- Q: Can Regulators Keep Nursing Home Residents Safe?
- Q: Underreporting Wrongful Death In Nursing Home And Assisted Living Facilities
- Q: 10 Steps To Selecting A Safe Nursing Home
- Q: What Are The Different Types Of Wisconsin Assisted Living Facilities?
- Q: How Can I Learn More About A Nursing Home/Assisted Living Facility's Track Record?
- Q: 10 Nursing Home Residents' Rights You Need To Know
- Q: 5 Steps To Take If You Believe Your Loved One Is Not Getting Proper Care In A Nursing Home
- Q: 8 Common Warning Signs of Nursing Home Abuse And Neglect
- Q: What Are The Common Legal Claims Associated With A Nursing Home Or Assisted Living Facility Case?
- Q: What Damages Are Available In A Nursing Home Or Assisted Living Facility Case?
- Q: Bedsores, Pressure Ulcers and Nursing Home Neglect
When Should I Consult with a Nursing Home Lawyer?
Sometimes, families suspect their loved one is being abused in a nursing home or assisted living facility. This is a confusing time. Emotions are at work. Even family members can disagree about whether their loved one is receiving appropriate care. Assuming family members agree that there is a problem, they can disagree about how to fix it.
As Wisconsin nursing home lawyers we are frequently asked how families know when it is a good idea to contact an attorney if they suspect their loved one is not receiving appropriate care in a nursing home or assisted living facility.
We suggest that you contact a Wisconsin nursing home lawyer as soon as you suspect your loved is receiving substandard care. We have found that when we get involved early on, we stand the best chance of helping victims of nursing home abuse or neglect.
Not every concern we hear about results in a case. Sometimes, we are just able to provide simple solutions over the phones that make a big difference to families in need. Our experienced Wisconsin nursing home lawyers can give you valuable information about how to protect your loved one. Feel free to contact the caring lawyers at Studinski Law, LLC, if you have further questions.
What Document Should You Never Sign When Admitting Your Loved One To A Nursing Home?
The admissions process at a nursing home can resemble a real estate closing in many respects. Potential nursing home residents or their representatives are ushered into an unfamiliar room by someone they have never met before to sign a stack of lengthy technical documents. It is a small wonder that most don’t know what they have signed after such a meeting.
The legal experts at Studinski Law, LLC recommend that you do not sign any document during the nursing home admissions process that contains an arbitration clause. This is perhaps the most important step you can take to preserve your rights should future abuse or neglect occur. A valid arbitration clause in a nursing home contract means that if the nursing home abuses or neglects your loved one, you cannot bring a case in circuit court. This is particularly troubling because often the arbitration clause will set forth the identity of the arbitrator, who will pay the arbitrator and the rules that will be used.
Can you imagine if any party had this level of control over a circuit court case? What if a party to a case could pick his or her own judge? What if that party also was paying the judge for his service? What if that party, together with the judge, determined the rules and procedures that would be used to process your case? We would never tolerate this brand of justice from our courts.
Yet unwittingly, many enter into just such an agreement with nursing home corporations. Perhaps this is because, throughout this process, potential nursing home residents and their family members are dealing with a complicated set of feelings. Admitting a love one to a nursing home may be one of the most difficult things we ever have to do. Often, our loved one does not wants to remain at home. We would prefer that too. Sometimes we feel a mix of emotions. We know we need help and at the same time feel a sense of guilt that we are unable to meet the needs of our loved one at home. Under these conditions, people often sign documents they would not otherwise sign.
Even under such difficult circumstances it is important for potential nursing home residents and their representatives to read the admissions documents before signing. It is also important to resist any effort by any nursing home to restrict your access to the courts, not because you intend to bring a lawsuit when entering a facility, but because IF the worst happens you will want access to all appropriate means to hold the nursing home corporation accountable.
Can Regulators Keep Nursing Home Residents Safe?
You be the judge. The state and federal governments regulate nursing homes. As part of this regulation, the state conducts surveys, which are essentially investigations to make sure that the nursing home is following state and federal regulations.
There appear to be two primary types of surveys. First, there is a survey that is triggered when a complaint is made about the nursing home. Many of these complaints are filed with the State of Wisconsin Department of Health and Family Services–Division of Quality Assurance. Second, the state conducts random unannounced surveys of nursing homes.
It is also important to note that nursing homes are obligated to self-report violations to the state. We are not aware of statistics that track how often facilities actually do this. Our firm has received complaints about this process from throughout the state of Wisconsin. We have been told that bad conduct was not cited, citations were inconsistent between facilities, and that fines for bad conduct were too small to prevent future bad conduct. These issues have been raised in articles in the Wisconsin State Journal and the Milwaukee Journal Sentinel.
The Government Accountability Office (GAO) has now issued a statement that there are problems with the survey process—the process by which regulators inspect nursing homes. The GAO found that both surveyors and directors identified weaknesses in the survey process, and that “46 percent of surveyors and 36 percent of directors reported that the weaknesses contributed to understatement.” Understatement means a failure to issue citations that are appropriate in scope and severity. CMS concluded that additional tools such as improvement of surveyor training would help improve the process.
The GAO study also indicated that there were workforce shortages and greater use of relatively inexperienced surveyors, and that these problems contributed to understatement. “Nearly three-quarters of directors reported that they always or frequently experienced workforce shortage, while nearly two-thirds reported that surveyor inexperience always, frequently, or sometimes led to understatement.”
Why is understatement in the survey process a problem? Many argue that understatement discourages accountability and improvement–two key components in our elder care system. Understatement diminishes the value of good care, by setting the penalty for bad care too low.
At Studinski Law, LLC, we advocate adding surveyors, increasing training and enhancing supervision to make surveys more meaningful and more uniform. We also advocate stiffer penalties for cases involving neglect or abuse. Recognizing the scope of the problems in nursing homes is the first step to fixing them.
Underreporting Wrongful Death In Nursing Home And Assisted Living Facilities
We believe that Wisconsin nursing homes and assisted living facilities chronically fail to report what are known as “reportable” deaths. We suspect that in most cases the failure to report a death is not intentional, but is the product of poor training or misunderstanding.
Wisconsin law is clear on the subject. Wis. Stat. §979.01(1) provides in relevant part that:
“All physicians, authorities of hospitals, sanatoriums, public and private institutions, convalescent homes, authorities of any institution of a like nature, and other persons having knowledge of the death of any person who has died under any of the following circumstances shall immediately report the death to the sheriff, police chief, or medical examiner or coroner of the county where the death took place:
(a) All deaths in which there are unexplained, unusual, or suspicious circumstances;
(b) All homicides;
(c) All suicides;
(d) All deaths following an abortion;
(e) All deaths due to poisoning, whether homicidal, suicidal or accidental;
(f) All deaths following accidents, whether the injury is or is not the primary cause of death….”
Yet many deaths go unreported. Consider for example, the elderly woman who falls at a nursing home, fractures her hip, and dies within thirty days. This is a reportable death. Yet, often such a death is not reported by a nursing home or assisted living facility perhaps because the resident has a number of co-morbidities (other serious health conditions), for example diabetes, congestive heart failure, or dementia.
Similarly, in a situation where a nursing home resident is severely dehydrated or malnourished and ultimately dies, the facility may not report the death. Such a death is clearly reportable under the law. Despite having handled many cases involving death relating to dehydration and malnutrition, only a handful were reported to the authorities.
If you have any questions about whether the death of your loved one was properly reported, feel free to contact us
10 Steps To Selecting A Safe Nursing Home
Experts in nursing home abuse and neglect cases, Studinski Law, LLC recommends ten steps that you can take to help select an appropriate nursing home placement for your loved one. The firm arrived at these steps after years of handling nursing home abuse and neglect cases. “We are not doctors, nurses or other medical professionals, but for decades we have heard families talk about ‘what they wish they had known’ and ‘what went wrong.’ We have always felt it is our first obligation and great privilege to help families avoid these horrible situations before they happen and they require our legal services,” says attorney Jason Studinski.
The great difficulty is that most people will only have to seek nursing home care for a very small number of loved ones, generally parents. Given the demands on your time, the stress of caring for a love one whose needs you cannot meet yourself, and the other obligations in your life, it is hard to make a good decision.
We hope that taking the following steps will help you in your decision-making process.
1. Talk with your loved one’s doctors, nurses, and other medical professionals and determine the specific needs that must be met.
For example, some folks need help being transferred from their bed to a toilet. Others may require more help with eating and drinking. Still other residents may need assistance with medical issues. The point is that to select an appropriate facility, you need to understand what needs must be met. Your loved one’s team of medical professionals can be an essential resource.
Of course, there are challenges to learning about your loved one’s specific medical needs. Your parents, grandparents, and other loved ones may not want you to know the details of their problems. They may feel vulnerable and embarrassed. This can be a difficult time, but there is no substitute for a good understanding of the type of care your loved one will need.
2. Talk with your loved one’s social workers and get as much information as they can provide about your nursing home options.
While it is true that availability is limited in most facilities, a local social worker can be a valuable resource in providing a full range of options available in your community. If your loved one has been hospitalized, cannot return home immediately and will need rehabilitation, the hospital social worker can be a great resource. We suggest that you seek out a social worker to learn as much as possible. Your legwork can mean the difference between success and failure for your loved one.
3. Ask the right questions. Here are a few examples.
- What is your staffing ratio: nurses to residents? Does it vary in the evenings? Does it vary on weekends and holidays?
- What is your staffing ratio: certified nursing assistants to residents? Does it vary in the evenings? Does it vary on weekends and holidays?
- What level of training does your staff have concerning my loved one’s needs, e.g., tube feeding, wound care or exit-seeking behavior?
- How long have the staff that will be caring for my loved one been employed here?
- Do you offer physical therapy, occupational therapy, speech therapy and other specialty services at this facility?
- How do you make sure that the direct care staff, like certified nursing assistants, are taking proper care of residents?
- Is there a particular type of resident need you cannot meet at this facility?
- Have you been cited by the state or federal governments in the last five years for violations of any kind? If so, tell me everything you have done to correct those problems.
- Do you have specialty practitioners on staff such as dieticians and wound care nurses?
- How do you know when you cannot meet the needs of a resident and a doctor should be called?
4. Track down a survey history for each facilities you're considering.
The State of Wisconsin surveys long term care facilities. After a survey, a survey report is compiled and made available to the public. Copies of all survey reports should be available from the State of Wisconsin Division of Quality Assurance, and each facility should be able to provide a copy of its survey history. In fact, a copy of the facility’s most recent survey may be posted at the facility. The information contained in the survey gives a picture of the types of problems a facility has encountered. This could indicate the kind of care your loved one will receive. All too often, family members have told me that if they had only known that the facility had certain problems, they never would have allowed their loved one to be admitted there. Knowledge is power–power to help prevent harm to your loved one.
5. Look for information published publicly about facilities you are considering.
You can find plenty of websites that publish information about a given facility’s survey history, ownership structure and other important information. Know for sure that you are admitting your loved one to the friendly local nursing home you think it is. Trust in the facts you find.
Too often our clients feel as though they have been lied to. They thought they admitted their loved one to a local facility and later discover the facility was being operated and controlled by a large nursing home company headquartered out-of-state and operating hundreds of nursing homes in multiple states. In other words, these families learned that an impersonal major corporation (not members of their local community) makes important decisions that impact their loved one’s health such as a budget for staffing, training and even food.
In one case, we consulted with a family that was shocked that a nursing home’s parent company was sold to a private equity group, whose goal it was to maximize profit. This family did not mind the nursing home making a profit. They just didn’t want profit to come at the expense of good care. We have more publicly available information than ever before. Do your research.
6. Talk directly with the Administrator, the Director of Nursing, and with other staff members of any nursing home you are considering.
If you're not completely certain their facility can meet your loved one’s needs, voice your concerns. Make sure that your doubts are addressed before you admit your loved one.
Often at a nursing home, the admissions coordinator will meet with you. Many families do not ask to meet with anyone else at the facility. The admissions coordinator may try to convince you that the nursing home is right for your loved one. Maybe it is and maybe it isn’t. We suggest that you meet with other staff at the nursing home, such as the Administrator and Director of Nursing to get a better feel for the nursing home.
7. Consider talking with nurses and nursing assistants before admitting your loved one.
Most direct patient care in a nursing home is provided by nursing assistants, not by nurses or supervisors. If there is a specific room open at a particular facility, ask to speak with the nurse and nursing assistant that would be providing care to the person in the proposed room. This will give you some sense of who will be taking care of your loved one.
8. Give yourself permission to turn down a facility.
Understandably, you are going through a very difficult time. Your loved one needs more care than you can provide. You may be emotionally drained. Perhaps, you feel guilty because you must trust the care of your loved one to someone outside of your home or your family. These can be very confusing times. Don't allow anyone to pressure you into a decision. Take a deep breath and say “no” if you believe that a particular facility simply can't meet the needs of your loved one.
9. Do not be afraid to seek help if you are concerned about your loved one’s care once he or she becomes a resident.
If you are unhappy with the care your loved one is receiving, bring it to the attention of the Director of Nursing, the Nursing Home Administrator, or other management. The facility management may not even be aware that there is a problem. Sometimes, problems can be resolved this way.
10. Even after bringing problems to the attention of the nursing home, if the issues are serious and still not resolved, find a different nursing home or assisted living facility placement for your loved one.
Use these guidelines to improve your chances of finding the right facility to provide needed care and compassion to your loved one.
Click here to download a free printable checklist to help you and your family select the best facility for your loved one.
What Are The Different Types Of Wisconsin Assisted Living Facilities?
In addition to skilled nursing facilities (nursing homes), there are a variety of assisted living facility options. Generally, if residents need skilled nursing care and/or rehabilitation, they go to a nursing home. Nursing homes are regulated by federal and state law. However, sometimes residents do not need skilled nursing care, but are not able to live alone or with a family member or friend.
In those instances, an assisted living facility may be an appropriate placement. Assisted living facilities generally offer a more home-like environment. They are regulated by state law. Such facilities come in several varieties, including:
· Community Based Residential Facilities (CBRF);
· Adult Family Homes (AFH); and
· Residential Care Apartment Complexes (RCAC).
Each of these facilities is governed by specific state regulations.
Assisted living facilities, regardless of the type, are not necessarily bad. However, navigating the maze of terminology to determine what type of assisted living facility you or your loved one needs can be challenging.
We encourage consultation with medical care providers, family members and existing regulations when determining which specific type of assisted living facility may be appropriate given your specific needs and preferences.
If you have further questions about the regulations associated with Wisconsin assisted living facilities, please feel free to contact us.
How Can I Learn More About A Nursing Home/Assisted Living Facility's Track Record?
Facilities are surveyed (investigated) by the State of Wisconsin on a regular basis. In addition to these regular survey visits, the state also does additional investigations to look into specific complaints, especially complaints of poor care, abuse, or neglect of residents.
These survey reports can be great sources of information for you as you try to determine whether a particular facility would be appropriate for your loved one. Generally, these survey reports are available at the State of Wisconsin Department of Health and Family Services–Division of Quality Assurance. The reports, at least the most current survey report, should also be available from the facility itself.
At Studinski Law, LLC, we highly recommend that you obtain these reports before you agree that your loved one can be admitted to a particular facility. You should also search online for all sources of information about the facility you are considering.
10 Nursing Home Residents' Rights You Need To Know
Your loved one has rights granted by federal law. Your loved one has similar rights under Wisconsin law, regardless of whether he or she is a resident of a nursing home or another long-term care facility such as a community based residential facility or adult family home. In other words, much of our state law is similar the federal law noted below.
NURSING HOME REFORM ACT: RESIDENTS’ RIGHTS BILL OF RIGHTS
The Nursing Home Reform Act established the following seminal rights for nursing home residents:
1. The right to freedom from abuse, mistreatment, and neglect; 2. The right to freedom from physical restraints; 3. The right to privacy; 4. The right to accommodation of medical, physical, psychological, and social needs; 5. The right to participate in resident and family groups; 6. The right to be treated with dignity; 7. The right to exercise self-determination; 8. The right to communicate freely; 9. The right to participate in the review of one's care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility; and 10. The right to voice grievances without discrimination or reprisal.
These are some of the basic and important rights that nursing home residents retain when they enter a facility.
5 Steps To Take If You Believe Your Loved One Is Not Getting Proper Care In A Nursing Home
If you suspect your loved one is not getting proper care there are a number of important steps to take:
1. Report your concerns to the Director of Nursing and Administrator immediately. The management team at the facility may not be aware (even if they should be) of a particular problem. Bring the problem to their attention and follow up regularly.
2. If the problem persists after talking with management at the facility, you may want to consider contacting your loved one’s doctor to help address the problems. Consider calling the Ombudsman’s office (an official that can be helpful in working out differences between facilities and families), and/or consider filing a complaint with the State of Wisconsin Department of Health and Family Services–Division of Quality Assurance.
3. If the problems you raised are not resolved to your satisfaction within a reasonable period of time, you may consult your loved one’s doctor about a possible transfer. This is a difficult, important, and personal decision that is best left to families and their medical professionals. There are risks involved. If you fail to transfer your loved one even though his or her needs are not being met – this is problematic. If you transfer your loved one, you will have to deal with the fact that such moves can be extremely taxing for the elderly and frail. Again, this is an important – potentially lifesaving decision that should be made by families and their medical care providers.
4. If your loved one needs immediate help, call an ambulance.
5. If you suspect your loved one is being abused—physically or financially—call the police.
What Are The Common Legal Claims Associated With A Nursing Home Or Assisted Living Facility Case?
We are often asked to explain the different types of claims that may be brought in connection with a nursing home or assisted living facility case. These claims can be broken down into two broad categories: claims on behalf of the resident of the facility and claims brought by the surviving spouse or children of the facility. Let me explain.
First, residents of a nursing home or assisted living facility may bring claims. There is nothing about become a resident of a facility that in any way causes someone to lose their rights. In the event that residents die, their claims do not die with them. In fact, Wisconsin law has long recognized this issue by allowing an estate to be formed in the name of the deceased resident. Usually, this process involves a surviving spouse or family member petitioning the court for appointment of a special administrator. This may sound complicated or very involved.
Regardless of whether residents are living or deceased, they may have certain claims against a facility. We have brought claims for negligence, misrepresentation, and punitive damages. There are other claims as well.
For purposes of this article, though, let’s focus on the common types of claims brought by residents or their estates.
(a) Negligence is a claim brought when a facility fails to behave in a reasonable and prudent manner and a resident is injured or killed as a result.
(b) Misrepresentation occurs when a nursing home or assisted living facility misrepresents information about the services it provides or the care your loved one receives. Commonly, the websites, brochures, and admission documents contain promises from the facility that a family members rely upon in placing a loved one in a facility. When those promises turn out to be untrue, a potential claim for misrepresentation may arise.
(c) A claim for punitive damages arises when a nursing home or assisted living facility acts with maliciousness or with an intentional disregard of the resident’s rights.
These are some of the more common claims brought on behalf of nursing home residents.
The right to bring claims does not end there. The surviving spouse and children may also have claims. Wisconsin has long recognized this right. If nursing home residents are living and have claims, their spouses may also have claims for loss of society and companionship (if the resident is living) and wrongful death (if the resident is deceased).
A claim for loss of society and companionship recognizes that a surviving spouse has lost his or her relationship with their spouse. If there is no surviving spouse, surviving children may bring a claim for loss of society and companionship and/or wrongful death.
If you would like additional information about these legal claims and how they may relate to your situation, please feel free to contact us.
What Damages Are Available In A Nursing Home Or Assisted Living Facility Case?
We are often asked to explain what types of damages injured nursing home and assisted living facility residents and their families can pursue. Many times we are asked about whether wrongdoers will lose their license, be prosecuted criminally, or be thrown in jail. Only the state or federal government can pursue those types of remedies. In most cases, the government does not pursue those remedies, even though many families ask the government to take such measures.
Most families are left with the remedies allowed in the civil justice system (the civil court system) where they can pursue claims for money damages. Two broad categories of damages exist: compensatory damages and punitive damages.
Compensatory damages involve money to compensate the victim for damages sustained at the hands of the wrongdoer. Again, these types of claims recognize that wrongdoers cannot undo the injury or death they have caused. The only justice available in many cases is money. This seems perverse to some people. After all money does not equal human life. Yet, money is the only justice available in many cases.
Compensatory damages include claims for conscious pain and suffering, past and future medical bills, funeral expenses, and a variety of other harms and losses sustained by victims of nursing home or assisted living facility abuse and neglect. These types of damages may be allowed for victims, or if victims are deceased, for their estates.
In addition to compensatory damages to be paid to victims and/or their estates, claims for compensatory damages may be brought by spouses and surviving children of spouses. These damages are paid to recognize the loss of society and companionship suffered by families when their loved ones are injured or die in a nursing home or assisted living facility. The law recognizes the loss of certain elements of a relationship or the loss of the relationship entirely (in the event of death) and allows for compensation.
In Wisconsin, there is no cap on damages for loss of society and companionship when the victim is still living. This means that a jury is free to allow the sum it feels is appropriate to compensate a surviving spouse or children for the harms and losses to that relationship resulting from the acts of a wrongdoer.
If the victim dies, the surviving spouse or children may bring a wrongful death claim. This claim is essentially a loss of society and companionship claim dealing with the permanent loss a very important relationship. This type of claim is capped at $350,000 under Wisconsin law, regardless of the number of wrongful death claimants. So, whether there is one surviving spouse or seven surviving children, the overall wrongful death claim is still capped at $350,000 for loss of society and companionship.
Finally, victims—either living or deceased—can bring claims for punitive damages. These claims are different than claims for compensatory damages. Compensatory damages seek to compensate the victim, while punitive damages punish the wrongdoer. Under Wisconsin law, punitive damages are now capped at twice compensatory damages or $200,000, whichever is greater. Furthermore, punitive damages are not available as a matter of right. The judge acts as a gatekeeper and determines whether a jury will be allowed to even consider awarding punitive damages. Wisconsin has one of the most restrictive, anti-victim punitive damages law in the country.
If you have further questions about the damages you or your loved can pursue in a nursing home or assisted living facility case, do not hesitate to contact us
Bedsores, Pressure Ulcers and Nursing Home Neglect
Some are under the impression that bedsores, also known as pressure sores, are an unfortunate but common reality of nursing home living. However, in most cases adult care facility bedsores are preventable and the existence of bedsore may be a sign of nursing home neglect.
Pressure ulcers are open sores on the body that can be caused by a number of environmental factors, including immobility, constant or ongoing compression, humidity, friction, malnutrition, incontinence, and extreme temperature. Once bedsores appear, they are difficult to treat, highly susceptible to infection and sepsis, and sometimes ultimately fatal.
How are bedsores a possible sign of nursing home abuse? Many of the conditions that lead to bedsores are only possible when an elderly nursing home patient is not properly cared for. Bedsores can develop if:
- Your loved one is immobile and is not being properly shifted, either in their bed or their wheelchair, every few hours.
- Your loved one is suffering from malnutrition, possibly from nursing home neglect.
- Your loved one is not being helped to the bathroom or changed consistently, leading to moist skin and increased changes of pressure sores.
- Your loved one is being physically or chemically restrained, making it difficult or impossible to shift their weight or position regularly.
- Your loved one's bed sheets are not being changed regularly, increasing the chances of bedsores and the infections that follow.
- Your loved one's room is too hot or too humid, making bedsores more likely.
A competent and caring nursing home will be well versed in bedsore prevention, which involves simple actions such as shifting patients regularly, inspecting patients' skin, attending to patients' toiletry needs regularly, encouraging patient movement, and maintaining healthy patient diets. Negligent nursing homes may leave nursing home residents untended for hours at a time, creating ideal environments for pressure sores to develop and fester.
If you live in Wisconsin and have a loved one who has suffered from or died from preventable pressure ulcers or bedsores, we urge you to speak with one of our nursing home neglect attorneys. Contact us today at (715) 343-2850 or fill out the simple form below. We are here to help.
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