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When you become aware of mistreatment of a nursing facility it is important to get your loved one the medical treatment they need and then get into ‘fact collection mode’.  In fact collection mode, you are beginning to collect information about the incident, acts of the nursing home staff and medical condition of your loved one. Doing some preliminary work before you meet with a lawyer will prove for a more effective meeting.

Don’t assume you won’t forget information regarding the incident. As time goes on, your memory will begin to fade. The following steps will help you organize your thoughts during a stressful time and to give an attorney the information he needs to work best on your behalf.

Despite the urge to block out the unpleasant facts and circumstances leading to an injury, much of the information listed below should be obtained as soon after an incident as feasible.  The following information will prove to be valuable in both assessing the facilities responsibility and potentially as evidence to be used at trial.

Photographs– Take pictures of the physical injuries themselves, the area where the incident took place and if possible, the people involved.  In cases involving particularly gruesome medical conditions (pressure sores, amputations, surgical wounds) no medical record can do justice to what your loved one experienced.  Use a real camera as opposed to a camera-phone as the photos will be better quality.

Start Writing– Write down as much information about the incident or events as you can remember. Write some more. Details can be particularly helpful in the course of litigation as many nursing homes have high rates of employee turnover that can make obtaining information difficult.  Concentrate on: names, dates, room numbers, names of facilities and medication dosages (if relevant).

Medical Chart– The medical chart from a nursing home and / or hospital is crucial to determining what a facility may have done or failed to do that resulted in injury or death.  If your loved one sustained an injury that resulted in subsequent medical care at a hospital, these records will be important as well.

Chronology– This does not need to be one’s life story.  However, if a condition developed over time or there are multiple facilities that may responsible for the injury or condition, it is important get the correct names and general dates of admission at health care facilities.  The names of doctors who provided medical can be helpful as well.

Other Relevant documents: Healthcare Power of Attorney, wills, death certificates, pre-injury photographs, autopsy reports and nursing home inspection reports all can be helpful when meeting with an attorney.  Bring them with.

There really is no such thing as providing a lawyer with too much information.  An experienced nursing home lawyer will be able to sort through the materials and determine what information is relevant to your case.  Further, a law office that regularly handles nursing home matters should be able to access much of the above information with the use of properly executed medical authorizations. 

The bottom line is that you should not let your inability to access certain information delay from meeting your meeting with an attorney as soon as you are comfortable.  Meeting with an attorney soon after an incident will provide the best opportunity to secure information relevant to your case.

Jonathan Rosenfeld represents individuals and families in cases against nursing homes and long-term care facilities.  Jonathan is the author of the Nursing Homes Abuse Blog

Admin Note: Thank You Jonathan for your great Guest post. To all my readers, if you have soemthing you would like to say or something you would like to see, please feel free to e-mail me!

JL

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You Suspect Mistreatment. What To Do Next?

Our legal system is based on proving a case through the use of evidence.  A mere suspicion of mistreatment in a nursing home or long-term care setting, is really just the beginning point in determining why your loved one suffered an injury or died.

Signs of possible physical abuse or neglect include: 

 Once you become aware of the physical signs of abuse, you may want to contact an attorney to help you learn more about the potential cause of the injury.  If a facility caused or contributed to the injury, an attorney can advise you as to your legal rights with respect to recovering damages.

Probable causes of nursing home injuries

Most situations involving nursing home abuse and neglect are the consequence of staffing problems at the facility.  Many nursing homes are chronically under-staffed by employees who may be under-trained and not equipped to handle residents who require high levels of care.  Moreover, high staff turnover is a common problem facing the nursing home industry.  Errors may result from the fact that employees may be unfamiliar with the individuals they are responsible for caring for and what their medical needs are.

What to look for what hiring a lawyer

Once the decision to hire an attorney is made, it is important to distinguish the lawyers who regularly handle nursing home cases from lawyers who may have a generalized law practice.  The field of nursing home litigation is very complex it is imperative that you work with a lawyer who regularly handles nursing home matters. 

Don’t shy away from asking attorneys about their experience with nursing home litigation.  An experienced attorney should never shy away from answering questions related to their practice and all aspects of nursing home litigation.  A good attorney should also be able to answer your questions in a way you can understand.  If you don’t understand them, how will a jury be able to follow them?

Given the fact that many nursing home negligence cases require years of work, it is important that you are comfortable with your attorney and feel like you can work with them.  If you don’t feel comfortable with the individual– you should look for another attorney.

The fee arrangement

Once an attorney is hired, he has an incentive in helping you learn the cause of your loved ones injury or abuse, as most nursing home attorneys work on a contingency fee basis.  Under a contingency fee arrangement, an attorney will only get paid if there is a recovery for your behalf. 

Time requirements for bringing a cause of action against a nursing home

All jurisdictions have time constraints, better known as statutes of limitations, for filing a lawsuit against the nursing home or parties responsible for the injury to your loved one.  If you fail to name the correct parties within the time limits set by each jurisdiction, your claim will be forever barred. 

Given the fact that some nursing home residents suffer from cognitive impairments and are unable to communicate what may have occurred during an incident, time must be allotted to conduct a thorough record review and an investigation to determine the merits of the case with respect to each party.  Consequently, it is in your best interest to contact a lawyer as soon as you are comfortable after an incident.

The decision to hire an attorney is very much a personal decision.  However once an attorney is hired, it should give you some relief that you have someone looking out for your best interest. Your decision to prosecute the harmful acts of nursing homes may lead to safety improvements for future nursing home residents-even yourself.  Over the last decade, improvements in patient care have been made by the nursing home industry in response to issues raised in the course of litigation.

Jonathan Rosenfeld represents individuals and families in cases against nursing homes and long-term care facilities.  Jonathan is the author of the Nursing Homes Abuse Blog

Admin Note: Thank You, Jonathan, for your blog post. I hope to get more opportunities to post informatiion from you.

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Admin Note: After some further discussion with MSH, I also provided her with the following information. MSH stated under duress she had to sign admission papers saying they would only use particular physicians. I provided this information in hopes that it would be of help to her, and to you if you find yourself in similar circumstances.

I shared certain portions of the federal regulations and the guidance to surveyors with MSH that applied to her situation. The regulation itself is in black, the information in purple is not the regulation, but is guidance CMS uses to interpret the regulation, and my statements are in blue

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights

 

All residents in long term care facilities have rights guaranteed to them under Federal and State law. Requirements concerning resident rights are specified in §§483.10, 483.12, 483.13, and 483.15. Section 483.10 is intended to lay the foundation for the remaining resident’s rights requirements which cover more specific areas.

These rights include the resident’s right to:
Exercise his or her rights (§483.10(a));
Be informed about what rights and responsibilities he or she has (§483.10(b));
If he or she wishes, have the facility manage his personal funds (§483.10(c));
Choose a physician and treatment and participate in decisions and care planning (§483.10(d));  

 

§483.10(d)(1) Free Choice – The resident has the right to choose a personal attending physician

The right to choose a personal physician does not mean that the physician must or will serve the resident, or that a resident must designate a personal physician. If a physician of the resident’s choosing fails to fulfill a given requirement, such as §483.25(l)(1), Unnecessary drugs; §483.25(l)(2), Antipsychotic drugs; or §483.40, frequency of physician visits, the facility will have the right, after informing the resident, to seek alternate physician participation to assure provision of appropriate and adequate care and treatment. A facility may not place barriers in the way of residents choosing their own physicians. For example, if a resident does not have a physician, or if the resident’s physician becomes unable or unwilling to continue providing care to the resident, the facility must assist the resident in exercising his or her choice in finding another physician.

Before consulting an alternate physician, one mechanism to alleviate a possible problem could involve the facility’s utilization of a peer review process for cases which cannot be satisfactorily resolved by discussion between the medical director and the attending physician. Only after a failed attempt to work with the attending physician or mediate differences in delivery of care should the facility request an alternate physician when requested to do so by the resident or when the physician will not adhere to the regulations.

If it is a condition for admission to a continuing care retirement center (CCR), the requirement for free choice is met if a resident is allowed to choose a personal physician from among those who have practice privileges at the retirement center. (If the facility your loved one is at is not a CCR then this paragraph does not apply – and he/she should not be required to choose from a certain set of physicians)

A resident in a distinct part of a general acute care hospital can choose his/her own physician, unless the hospital requires that physicians with residents in the distinct part have hospital admitting privileges. If this is so, the resident can choose his/her own physician, but cannot have a physician who does not have hospital admitting privileges.

If you feel what they are doing is in violation of this information (they are not allowing the choice of physician), then I suggest you call in a complaint to the department of health for your state, the division that oversees the licensing and certification of nursing homes.

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Admin Note: This is in response to MSH’s question to me about a situation occuring with her loved one in a nursing home.

I so understand your frustration. As many good hearted staff as there are in nursing homes, there are still those who think they know it all in their approach to issues. You know first hand how you have to be totally on top of everything that is going on and be an advocate for your loved one who can’t be her own advocate.

 
You have medical evaluations on your side, so that is a good thing. You will have a struggle if the nursing home is giving out wrong information. Once a resident enters a nursing home – that nursing home is responsible for that resident and it is very hard to “get rid” of them, so to speak. Because of that, nursing homes get “picky” about who they will accept and if they think there is a potential for many problems they can decide not to accept that resident.
 
You want to look for a nursing home that is experienced with working with Alzheimers dementia. that is the first task. When you find one, you will need to approach them with your story.
 
 I would suggest you request all your loved ones medical records from the current nursing home, be sure you have the evaluations that show she is not psychotic. You may need to literally go to the DON and administrator of a facility you want to have her in, and gently explain the situation (but don’t “put down” the current DON, that would be a bad sign to the new facility). Show the records and the evaluations and explain that you are looking for a new home because you are looking for someone who is experienced in working with Alzheimers & their special activity needs.  The new facility will want to know why you are moving her. You will need to give an explanation so you will need to decide how much to share and in what tone. A kinder tone may get you further, meaning you don’t want to complain about the current facility but perhaps explain you find they are not understanding your loved ones needs and that is why you are looking for a facility that does understand her needs.
 
There are some things that will help you, such as do you have power of attorney for healthcare decisions? The facility can’t just put someone on psych medications without a reason and without consent. In addition, you should be talking with your loved ones personal physician (not just the medical director of the facility).  He/She can also tell the new facility that your loved one doesn’t need a locked unit, just a wander guard and activities. In fact, I don’t see in your story anything about if the Medical Director is at all involved. You do want to be sure her personal physician is one who is experienced in Alzheimers dementia.
 
I hope this helps you.

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