Archive for the ‘Nursing Home Negligence and Abuse’ Category


Caring for Nursing Home/Assisted Living Facility Bound Residents with Swallowing and Chewing Difficulties

Difficulty with chewing and swallowing, a potentially serious medical condition known as dysphagia, is very common in the elderly.   This condition may result from the gradual weakening of the aging person’s swallowing muscles or, in the case of dementia patients, as the result of the patient’s forgetting to swallow.  Dysphagia can lead to choking and/or aspiration pneumonia.  Aspiration pneumonia occurs when food or foreign object gets into the lungs and can also be the result of vomiting. 

Doctors will often recommend that the person diagnosed with dysphagia eat pureed foods and drink liquids thickened with a commercially available thickener to help ensure that the food: 1) does not require chewing; and 2) the food and liquids remain within the digestive system upon swallowing.  Medication in the form of pills may need to be crushed and delivered in a soft food item such as apple sauce. Obviously the nutritional status of such persons can also be difficult to manage.

What does this all have to do with nursing homes and assisted living facilities (ALFs)?   If a nursing home or ALF does not adhere to the resident’s food/liquid consistence requirements, the resident may end up in the hospital or never even make it to the hospital.  According to the CDC, 500 nursing home residents die each year as the result of dysphagia.

As discussed in many of our other nursing home negligence and abuse related blogs, vigilance by a family member(s) is still the best way to help ensure that the loved one is being properly taken care at the facility home (e.g., frequent turning to prevent bedsores).  As it applies to dysphagia, this vigilance includes verifying that the loved one is receiving the proper diet in the correct form (e.g., pureed food as opposed to solid food and thickened liquids, including water).   

In addition, family members should verify that staff members are properly supervised in feeding the loved one with dysphagia by asking plenty of questions and observing.   The dysphagia patient may be unable to feed himself or herself unassisted.  Untrained or improperly supervised staff members may not realize that such patients need to eat slowly and not have the food shoved into their mouths one spoonful right after the other to speed up the process.  Staff members should also alert his/her supervisors to any observed coughing problems while the resident is eating or drinking so that the patient’s doctor can be notified.  An observant staff member will also be on the alert for coughing problems during eating or drinking with an aging resident who has been at the facility for a while.  For example, dysphagia may develop gradually as the result of aging and weakening “swallowing” muscles, worsening dementia where the resident forgets how to swallow, etc.   

Failure of a nursing home facility or ALF to properly handle a “dysphagia” resident may well constitute negligence.   Indeed, dysphagia is a well-documented condition and these facilities should be well-versed in the challenges a “dysphagia” resident faces.[1]  This means among other things ensuring that the staff is caring and well-trained.  




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  1. 1.       See, e.g., Dysphagia in the Elderly: Management and Nutritional Considerations by Livia Suria, et al., Clinical Interventions in Aging, 7: 287-298 (2012).



A Lawyer’s Perspective: Quality Care Programs Based on Objective Quality Indicators for the Strategic Purpose of Reducing Bed Sores in Nursing Home/ALF Residents and Hospital Patients

We have written numerous blogs concerning the development of pressure ulcers, commonly known as bed sores, due to the negligent treatment of the nursing home resident or hospital patient by staff members.  One blog suggested using a quality-control approach to reducing the possibility of bed sores.  In this blog, we will revisit the concept of objective quality care approaches as a valid means of reducing: 1) the incidence of bed sores in the first place and/or 2) reducing the possibility of developing particularly serious Stage III (associated with open sores) and Stage IV (associated with craters or holes) bed sores.  

This blog is intended to emphasize that: 1) the causes of bed sore development are known; 2) the risk factors for developing bed sores are known; and 3) steps/procedures which will help reduce the development of bedsores or at the very lease allow for early “treatment” intervention are well known.  The above prevention tactics are nothing more than common-sense procedures that every nursing home and hospital can implement via specific quality care programs which are actually followed. 

As the name suggests, pressure sores (bed sores) result when the weight of the person’s body presses against a firm surface such as a bed mattress or a chair.  Or put another way, the bed sores develop due to the pressure exerted by the bed or chair on the person’s body.  In understanding just how such pressure cause bed ores, remember that the skin contains hundreds of blood vessels.  Bed sore-inducing pressure cut’s off the skin’s blood supply to the “pressure” area.  This area of damaged skin may likely become more susceptible to pressure-induced damage if steps are not taken to relief/reduce pressure on the now-compromised skin. 

It should not be surprising that the elderly, who are often frail due to poor bone and skin integrity, are particularly susceptible to pressure sores because of their lower tissue tolerance for pressure.  Old age is thus a “no brainer” risk factor for developing bed sores.  Bedsore healing in the elderly may also be complicated by the fact that wounds in the elderly tend to heal more slowly.  See Reference #5.

Beside old age,  many other well-known risk factors are associated with the development of bed stores.  Obviously the greater the number of risk factors specific to the person, the greater the likelihood that the person will develop bedsores.   Besides old age, the following factors are known to increase the risk for developing bed sores:

  • Being bedridden
  • Spending considerable time in a wheelchair
  • Diabetes or vascular disease that prevents areas of the body from receiving proper blood flow
  • Spinal cord injury (paralysis), brain injury, or other physical condition which prevents the person from moving parts of his/her body without assistance. 
  • Malnourishment
  • Mental disability such as Alzheimer’s disease or dementia which may prevent the patient from moving parts of his/her body without assistance not necessarily because they are unable to do so, but because they are not aware that they need to do so
  • Urinary incontinence or bowel incontinence.  (See Reference #1).

Many of the listed risk factors are typically associated with old age; therefore most elderly persons have multiple risk factors ranging from confinement to bed and wheelchairs to incontinence, mental disability, and/or malnutrition.   Upon their admission to a nursing home, elderly persons should thus undergo a formal risk factor assessment to determine their risk of developing bed sores.  They should then be monitored carefully for the onset of bed sores so that treatment can be timely rendered while the bed sore is still at a readily treatable stage. 

Bed sores may also result if the bed-ridden elderly person is dragged or slid across bed sheets, thereby creating potentially harmful frictional forces between the person’s skin and the bed sheet.   See Reference #2. It is also conceivable that “dragging” an elderly frail person may result in injuries to muscles or bones quite apart from bedsores.  Such treatment may also border on abuse. Nursing home residents and hospital patients are entitled to respectful, gentle treatment to prevent injuries, and it is up to the administrators to ensure that the residents are treated appropriately. 

Another known risk factor involves incontinence.   Failure to frequently change the underwear of individuals who are incontinent may increase the risk of developing bed sores; the resultant wetness from bodily waste can make the skin too soft and more likely to be injured by pressure. 

Diabetes and hyperglycemia are other well known risk factor for bed sores. See Reference #1.   One would hope that any nursing home resident or hospital patient who is known to be diabetic or hyperglycemic would receive a “heightened scrutiny” type of monitoring for bedsores from the onset of his or her hospitalization or residence at a nursing home.    

The general public often associates bed sores with nursing homes. It must be emphasized, however, that bed sores do not only originate in nursing homes.  Elderly people who are hospitalized also have a high risk of developing bedsores due to the various risk factors which make them susceptible to bedsores.  Patients transferred from hospitals to nursing home rehabilitation centers or being returned to their previous nursing home residences, are particularly vulnerable to bedsores according to the statistics.  It has been estimated that at least 10% and upwards of 35% of individuals transferred from hospitals to nursing home rehabilitation centers or the nursing homes where they had previously resided prior to the hospitalization have bedsores which originated at the hospital. See Reference #2   

On the other hand, it has also been estimated that about 26% of nursing home residents at least 65 years old who are admitted to hospitals had preexisting bed sores at the time of hospital admission compared to a 5% rate for those patients from another living situation.  See Reference #3.

Both nursing homes and hospitals should thus make every effort to carefully check any patient, particularly any elderly patient, who is being admitted from a nursing home or a hospital, whichever the case may be.  Without proper medical, even minor bedsores originating at the hospital or a nursing home may “turn into” serious Stage III and Stage IV bedsores.  

We further emphasize that pressure sores are not merely a condition of the elderly.  Individuals suffering from conditions which prevent movement such as paralysis, severe arthritis and/or multiple sclerosis, are susceptible to bedsores because of their inability to move without assistance.  Christopher Reeve eventually succumbed to complications from bedsores after living as a quadriplegic for several years. In October 2009, Eric Trainor,  a 30-year-old New York State resident, was awarded $2.2 million by a jury for the pain and suffering caused by horrific bedsores. As a consequence of a motor vehicle accident in which he had been a passenger, the Mr. Trainor had been hospitalized at Westchester Medical Center.  His injuries had caused him to become a quadriplegic.  Because of the hospital’s failure to turn the injured patient every two hours during his 6 week stay, the patient developed Stage IV bedsores which had to be surgically closed.  Furthermore, as a consequence of the bedsores, the injured man had to refrain from participating in physical rehabilitation so much so that he lost the chance to build up his upper body strength.

As nursing home negligence and abuse attorneys, we are particularly offended by those situations where the and/or hospital nursing home facility knew or should have known of the bedsore(s) and yet failed to secure proper medical care before the bedsores turned into Stage III or Stage IV bedsores.   As discussed above, the risk factors associated with bedsore formation are well known. One would hope that somewhere along the chain of command in nursing homes and hospitals supervisory oversight kicks in sooner rather than later to ensure that: 1) that basic procedures for reducing the formation of bedsores are in place, at the very least for those individuals who have multiple risk factors for developing bedsores; and 2) pressure sores are “caught” in their early stages.

Surgery is a known risk factor for the development of bed sores, and patients undergoing cardiac surgery “have been identified as being at higher risk that surgical patients overall.”  See Reference #4.   In a 2006 journal article entitled “Prevention and Early Detection of Pressure Ulcers in Patients Undergoing Cardiac Surgery” by D. Sewchuk, C. Padula, and E. Osbourne, the authors discussed the results of a study to assess strategies for minimizing pressure sores in patients undergoing cardiac surgery.  The authors cited the results of a study in which it was found that over half of the total pressure ulcers which occur in hospitalized patients occur in patients who have under gone surgery and that most of these were found in cardiac surgery patients.  See Reference #4.  

Sewchuk, et al. further noted that cardiac surgery patients are probably already at a high risk of developing pressure sores in the first place because of the presence of diabetes, advanced age, and/or several co-morbidities.   Also, the nature of the cardiac surgery itself is a risk factor.  Thus, a patient who is “bypass” will generally be confined to an operating room bed for an extended period of time, and “during the intraoperative period in particular, patients are often supine and cannot be turned.”   See Reference #4.     

Based on the results of their study, the authors concluded that “[m]easures which can be implemented in the OR [for reducing bed sores] should be considered.”  These measures may include reducing the number of layers of material and assessing warming methods.  The authors went on to make several recommendations for nurses who provide postoperative care to cardiac surgery patients.  The recommendations are important because they are based on a common sense approach to understanding the patient’s risk for developing bed sores based on identified risk factors and taking actions to reduce the likelihood of bed sores based on the known risk factors.  In particular, the authors emphasized that “an interdisciplinary, collaborative approach is critical” for developing a bed sore prevention strategy.  In other words, a hospital’s bed sore prevention strategy will never be successfully implemented absent a team effort from the top down.   See Reference #4.

Sewchuk, et al.’s own conclusions certainly argue in favor of the implication that the teamwork concept for promoting quality nursing care is indeed transferable to the hospital setting.  Thus as a “high bed sore risk” risk, a cardiac patient’s hospital care team might consist of the bedsore risk assessor, a dietician knowledgeable in bed sore-related nutrition issues, the pre-operative nursing staff, and the post-operative nursing staff.   And applying the recommendations made by Keelaghan, et al., elderly individuals being transferred to a hospital from a nursing home should undergo a thorough examination upon hospital admission to address any bed sore problem already present. See Reference #3. 

The foregoing discussion begs the following question:  What’s the best way to institute a initiate and maintain a bona fide quality care programs to minimize bed sores?  Most hospitals and nursing homes do emphasize quality medical care through at least a mission statement.  But a mission statement in and of itself does not guarantee quality care.    Quality can be an elusive concept if the “quality purveyor of medical care” cannot objectively define what constitutes quality care according to defined measurable parameters.  

To their credit,  the American Nurses Association has articulated that the maintenance of skin integrity in hospitalized patients as an important indicator of quality nursing care “based on the premise that pressure ulcers are preventable.”  See Reference #4.  This is the type of measurable parameter that can be assessed in both hospitals and nursing homes.  Furthermore, this type of objective quality care indicator is the type of ascertainable data we had in mind when we discussed the “Deming-like” approach to assessing cost effective steps for minimizing bedsores in nursing homes in a previous blog.

We applaud the American Nurses Association for “studying” bed sore prevention approaches in a hospital setting based on known risk factors.  Serious bed sore development should not be treated as an expected outcome of hospitalization or nursing home confinement.  That is, bed sores should not be treated as “collateral damage” of nursing home confinement where the residents, given their various risk factors, are ripe candidates for bed sore development.  The same applies to hospital patients.

Bedsores may never be totally preventable, particularly in those nursing home residents/hospital patients who are often frail to start with and often have other risk factors such as diabetes and poor nutrition resulting from eating problems.  Nevertheless, it would seem that all nursing home facilities and hospitals which have elderly persons as it customers should have in place procedures to, at the very least “catch” bed sores at a very early stage so that proper treatment can be timely rendered before the bedsores turning into a very serious and costly health situation.  

The successful implementation of a quality care program to reduce bedsores will require dedication from top management on down to create an environment dedicated to bedsore prevention and/or early intervention in treatment.   This is not a situation where the wheel needs to be re-invented to achieve a desirable outcome.  As discussed above, the risk factors associated with bedsore development are well known.  Furthermore procedures for minimizing bedsore formation are well known.  Nevertheless, knowledge without action is not going to solve bedsore problems.

It is our belief that any sustainable quality control program must include proper training of staff members and holding staff members and their supervisors accountable for lapses in the program.  On the flip side, the institution could also encourage proper treatment of patients or residents by implementing an awards recognition program for those departments showing a genuine decline in the number of bed sore incidents due to the implementation of a quality control program.  Management studies have repeatedly shown that employee motivation can play a key role in creating an atmosphere dedicated to quality control and also in retaining good employees.   One well known way of motivating employees is through an employee recognition program because employees based on achievement of pre-defined quality care indicators.

Two possible objective quality care indicators for assessing the efficacy of a bed sore-reduction program are:

Bed sores per patient or per resident before and after implementation of a specific quality care program or modifications to an existing programObjective indicator: a reduction in the percentage of patients who develop bedsores within a defined population of patients or residents.

Bed sore stage at which treatment commenced.  Objective indicator:  an increase in the percentage of patients who receive treatment at the readily treatable Stage I stage and a decrease in the percentage of patients who develop Stage III and Stage IV bedsores.   

As stated above, procedures for minimizing bed sores are well known, and it is often the failure to follow these procedures which result in bedsores often because of improper training; lack of employee accountability; and/or lack of supervisory oversight. These procedures include changing positions often.  See Reference #2. Unfortunately many elderly nursing home residents do not have the strength to turn themselves and require assistance.  Moreover, those residents suffering from dementia or Alzheimer’s probably lack the cognitive ability to “know” to turn themselves.  Nursing homes and hospitals should have a policy whereby staff members turn their bedridden residents/patients every two hours and staff members should be required to document their actions. 

Other prevention tactics include: 1) keeping the incline of the head of the resident’s bed less than 30 degrees; 2) supporting the resident’s legs correctly; 3) keeping the resident’s knees and ankles from touching by using a pillow under the legs from the middle of the calf to the ankle; 4) keeping the skin clean and dry; and 5) daily skin inspections.  The latter means actually evaluating the areas most susceptible to bedsores, namely the buttocks, hips, elbows, lower back, legs, and heels. See Reference #2.  

Nursing homes might also consider providing pressure-release wheelchairs for their residents, which tilt to redistribute pressure and may make sitting long periods easier and more comfortable and beds which have been shown to reduce the likelihood that a pressure ulcer will form. See Reference #2.    Such seating and bed arrangements could at least be provided to those residents which are deemed to have a high risk of developing bed sores based on multiple risk factors as identified by the nursing home patient or hospital assessment team.  

Other prevention tactics include using pressure-reducing beds, proper nutrition, and keen supervisory oversight.   To borrow from former president Harry Truman, the buck will need to stop with upper management and supervisors and managers who must be the moral trend setters to create an atmosphere dedicated to minimizing pressure sores in nursing home residents and hospital patients.  As discussed above, many of the procedures which are known to help reduce bed sores involve “hands on participation” by staff members and not additional equipment.  At the very least, any patient who evidences signs of a Stage I bed sore needs to be treated promptly and such treatment can only be rendered if the staff is pro-active in monitoring its patients or residents.

The cost of doing something may be deemed unreasonable when viewed only in the context of any associated cost/expense.  If, however, the pain and suffering of bed sore victims is taken into account, the cost of doing something should seemingly be a deemed a reasonable expense by any hospital or nursing home which truly cares about its patients and residents. 

Furthermore, since 2008, hospitals actually have at least somewhat of a financial incentive to improve patient safety measures relating to preventing the development of bed sores especially in Medicare patients. Under current Medicare guidelines, hospitals are no longer reimbursed for additional care resulting from bed sores as the government has determined that the development of bedsores at a hospital is a so-called “never event.” This means that the development of bed sores is now being viewed as a medical error or an event that “should never happen.”  Medicare’s policy also prevents the hospital from charging the patient directly. Some insurers have followed Medicare’s lead and are also refusing to pay for the costs associated with treating bed sores developed by the patient while hospitalized. 

Since hospitals are no longer compensated by Medicare for treating bed sores originating at the hospital, the seeming financial incentive is to minimize the number of bed sores so that the hospital will not have to provide “free” medical services for treating bed sores developed while the elderly patient was on their watch.

Medicare’s “never event” application to bed sores should encourage progressive hospitals to implement procedures for keeping their patients bedsore-free. The nursing profession is also taking a lead in recognition of the fact that they are the hospital staff members “first in line” for having the opportunity to help prevent bed sore formation through careful monitoring and care.

As of the date of this blog, Medicare has not applied the “never event” to bedsores developed in a nursing home setting.  Thus nursing homes, including rehab centers, will continue to be reimbursed by Medicare for costs associated with the treatment of bedsores developed at their facilities.   This also means that Medicare is continuing to pay for treatment of bed sores developed at a nursing home which become so severe that the resident requires hospitalization. 

Despite some positive trends,  we are not optimistic that bed sores, whether developed at a nursing home or a hospital due to negligence will become a problem of the past any time soon because not all hospitals or nursing homes are genunitely intent on risk identification and management to mitigate problems such as bed sores.  We must also emphasize that thousands of elderly people reside in Assisted Living Facilities (ALFs), which are separate and distinct from nursing homes.  In 2011 the Miami Herald did an investigation of ALFs which revealed that many, many ALF’s within Florida were both neglecting and abusing their elderly, vulnerable residents.  Attempts were made in the recent legislative session to get a bill passed which would provide much stronger state oversight and penalties for such egregious conduct on the part of “guilty” ALFs.  Unfortunately, no bill whatsoever was passed to address this sad and disgusting situation thanks in large part to the lobbying efforts of the ALF industry. 

State laws generally recognize that bed sore victims do have the legal right to seek damages for their pain and suffering. Florida even has a Nursing Home Bill of Rights which provides bed sore victims with a right to initiate legal action.   If the bed sores, whether developed in a hospital, nursing home, or ALF, become so serious that they contributed to the person’s death, the victim’s estate may commence a wrongful death action.   

We hope that this blog is informative and that your or a loved one will never have to deal with bed sores.  If , however, you or a loved have suffered from bed sores, particularly from bed sores which were allowed to fester before treatment was commenced, you may wish to consult with a nursing home negligence and abuse attorney to discuss your options.

Reference # 1.  See information available at

Reference #2.  See information available at

Reference #3. Keelaghan, Eithne, et al., Prevalence of Pressure Ulcers on Hospital Admission Among Nursing Home Residents Transferred to the Hospital in Wound Repair Regen. May – June; 16(3), pgs 331-336 (2008).

Reference #4  D. Sewchuk, et al., Prevention and Early Detection of Pressure Ulcers in Patients Undergoing Cardiac Surgery in AORN, 84(1), pgs 75-96 (July, 2006).

Reference #5.  See



Nursing Home Neglect and Abuse; Just Who’s Minding the Store?

In our previous blogs on nursing home neglect and/or abuse, we emphasized that ailment most frequently arising nursing home neglect, namely decubitus ulcers, commonly known as bed sores.

Though bed sores get the most publicity, there are many other serious medical outcomes resulting from nursing home neglect.  This blog will focus on two (2) such outcomes: 1) injuries from falls; and 2) injuries resulting from failure to monitor eating limitations of elderly residents.


The Potentially Harmful Ramifications of Nursing Home Neglect

This blog will focus on other serious potentially life-threatening ailments resulting from nursing home negligence.

One systematic problem in Florida and throughout the country is failure to staff the nursing home facility with a sufficient number of employees willing and capable of dealing with problems of the aged. In a previous blog, we emphasized that the adoption of clearly-defined quality assurance measures could help address this problem, and one such measure involves the on-going training of employees.

Residents of nursing homes often arrive with specific physical ailments and often in the course of their stay, their ailments may worsen or other physical ailments may arise.  We would emphasize that even the best nursing homes cannot be expected to totally prevent their occupants from getting sick, acquiring new ailments, or the worsening of pre-existing ailments.  After all, the nursing home population is comprised of individuals who for the most part are there because of poor health, either physical, mental, or a combination thereof.


Nursing Home Negligence Litigation and Arbitration Agreements: The Intersection of Contract Law and Negligence Law

Contractual Agreements often contain a provision requiring any legal dispute between the parties to be settled by binding arbitration instead of a lawsuit.  More often than not, the  terms of the arbitration provision in a contractual agreement are non-negotiable, and very often the parties signing such an agreement do not “come to the agreement” as parties with equal bargaining power. Often times, one of the parties may not even understand the full implication of the arbitration provision should a dispute between the parties ever arise.

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