DO YOU SUSPECT ABUSE OR NEGLECT? Contact Us for a Free Consultation

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The son of Maria Cobian, the elderly woman who was hit by a car and killed when she wandered away from her nursing home, has filed a wrongful death lawsuit in Vista Superior Court.

The lawsuit alleges that Palomar Heights Continuing Care Center in Escondido negligently failed to supervise Ms. Cobian, and to ensure the safety of 94-year-old resident, who also suffered from dementia. Ms. Cobian was only a few hundred yards away from the nursing facility when she walked into traffic and was struck by a car. The company of the car that hit Cobian was also named in the lawsuit.

Despite her alleged documented history of trying to leave the facility, and the nursing home’s failure to prevent it, it doesn’t appear that there are allegations of elder neglect under the Elder Abuse and Dependent Adult Civil Protection Act against the facility, which allows for enhanced damages against nursing homes, including pre-death pain and suffering, when certain burdens of proof are met.

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Nursing home abuse and neglect is not always perpetrated by staff members. New research from Cornell University suggests that aggression and violence between residents may be more prevalent than abuse or mistreatment from nursing home employees.

According to the study, peer-on-peer abuse is nursing home is a problem that has received little attention.

“Given that nursing homes are environments where people live close together, and many residents have lowered inhibitions because of dementia, such incidents are not surprising,” said Karl Pillemer of Cornell. “Because of the nature of nursing home life, it is impossible to eliminate these abusive behaviors entirely, but we need better scientific evidence about what works to prevent this problem.”

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New research shows that elderly people suffering from dementia who are given antipsychotic drugs are more likely to end up in a hospital or die, even if the drugs are administered for a very short period of time.

Antipsychotic drugs are frequently used in nursing homes to address the behavioral issues caused by dementia, including aggression, agitation, and delirium. Physicians concede that alternatives to antipsychotics to address this type of behavior are limited.

Many experts feel behavioral interventions should be tried first and antipsychotics used as a last resort, “when the behavior or the psychiatric symptoms are really out of control and causing complete distress not only for the person suffering from Alzheimer’s, but for caregivers all around them,” said Maria Carrillo, director of medical and scientific affairs at the Alzheimer’s Association in Chicago. “It’s important to work these things out with the physician and, of course, do follow-up very closely together, so you can make sure these antipsychotics are having the effect you want and, if not, discontinue them immediately.”

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Washington D.C.’s most powerful lobbyists are being hired by the nursing home industry to fight congressional efforts to reform the industry. The industry is closely watching bipartisan legislation that would significantly increase oversight and enforcement of nursing homes around the country.

The new legislation, recently introduced by Sens. Grassley (R) and Kohl (D), would require nursing homes to fully disclose their ownership structures, and would increase penalties if a patient is injured or dies due to negligent or neglectful care. The industry is expected to pay millions to fight this legislation.

Why would nursing home owners disapprove so strongly of a law that requires them to disclose who actually owns and runs the facilities that provide them such a great profit? Liability. Many owners have created maze-like ownership structures that makes it nearly impossible to find out who actually owns the facility when something goes wrong. It’s not uncommon to have a one corporate entity own the building, who then leases it to a second company (the nursing home), who then contracts with a third company to operate it.

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The California Advocates for Nursing Home Reform has issued its 2007 Nursing Home Citation Report. CANHR has prepared a citation summary, including the name of the nursing facility, the date, the level of citation, and a brief summary of the facts that led up to the citation. There is also an instructional key to help readers understand how the individual nursing home citations summaries are displayed. The report, which is broken down by California counties, can be found here. (.pdf)

In summary, a total of 651 citations were issued against nursing homes in California by the Department of Public Health in the year 2007, 22 of which were Class AA citations (violations caused a death), and 122 were Class A (violations present imminent danger and a substantial probability of death).

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Every skilled nursing facility (nursing home) in California is licensed by the California Department of Public Health (DPH). DPH, in turn, is charged with the responsibility of monitoring nursing homes in the state, which includes conducting annual inspections and investigating complaints of abuse or neglect.

Most complaints involve allegations of abuse or neglect of the nursing home resident, but any topic can be the subject of a complaint, including, but not limited to, poor staffing, unsafe conditions, mistreatment, transfer and discharge concerns, generally poor care, or a violation of patient rights. Once a complaint is made – and any person may make a complaint – the DPH will create a file and assign an investigator to the case. In most cases, the investigation is concluded within 90 days. For a list of local DPH offices click here.

If you have a complaint, it is usually a good idea to first address those concerns to the nursing facility itself, whether it is the administrator or the family council. If dissatisfied with the response, it is suggested to call the local ombudsman in your county for further advice. If a complaint involves serious allegations of abuse or neglect that has resulted in some injury, it probably a good idea to get the advice of an attorney with experience in nursing home abuse or neglect cases, such as the attorneys at Walton Law Firm LLP.

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A report from the Government Accountability Office states that widespread deficiencies addressing malnutrition, bedsores, medication errors, and abuse of nursing home residents are often understated.

Congressional investigators have confirmed in the report something advocates for the elderly have known for sometime. That is, nursing home inspectors routinely miss, overlook, or minimize problems in nursing facilities that can pose a serious risk to patient health.

In California, nursing homes are inspected once a year by the Department of Public Health, which sets the licensing standards. The GAO report found that state employees missed at least one serious deficiency in 15% of the inspections audited by the federal government.

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A jury in Arizona has awarded $6 million to the family of Sylvia Culpepper after the 81 year old died from an overdose of morphine in a nursing home. Culpepper, who was an active senior, was in the ManorCare nursing home only to recover from a back injury, and was expected to return home after her recovery.

According to reports, the nursing home resident was diagnosed with sciatica in late 2003, and prescribed 15 milligrams of morphine, twice daily. Two days later, while still in the hospital, her morphine dosage was doubled. When she was discharged to Manor Care, both of the prescriptions went with her, and the nursing home staff immediately began giving Culpepper both dosages, twice daily, totally unaware of the mix up.

Attorneys representing the family said the jury blamed the nursing home for failing to recognize morphine intoxication and overdose, and for understaffing.

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When entering a nursing home, residents or their family are usually presented with a stack of documents that address everything from the fees to be paid to the type of pillow the resident prefers. More than a dozen signatures can be required to complete the admissions process. Often buried within that stack is an arbitration provision, a binding contract wherein the resident agrees that any disputes over nursing home malpractice, negligence, neglect, or abuse will not be resolved in the courts, but via private arbitration. Private arbitration is simply a process where allegations of neglect or abuse are resolved by a private judge (frequently a lawyer) and not a jury.

Last week, the American Association of Justice, the United State’s largest trial bar, announced its support for legislation titled The Fairness in Nursing Home Arbitration Act, which allows the decision to arbitrate to be made after a dispute has arisen, not before in the admissions process.

According to the AAJ, the passage of this act will prevent corporate nursing home owners from manipulating the arbitration system in their favor and at the expense of nursing home residents.

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In California, approximately 200,000 claims of elder abuse are investigated every year by California social services. Because of proposed cuts to the California state budget, the ability to investigate claims of neglect or abuse could be reduced dramatically at a time when a greater portion of our population will be considered “elderly.”

The director of the Center of Excellence in Elder Abuse and Neglect at UC Irvine is watching closely whether 75 social worker positions will be cut in the upcoming state budget. Mary Twomey stated that such a reduction in the investigation work force could translate into 20,000 allegations of elder abuse or neglect that will go uninvestigated.

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