The Trial Lawyer Fall 2017 - Page 35

and types of staff employed by each. A nursing home will generally have certified nursing aides (CNAs); staff nurses, who are generally Registered Nurses (RNs) or Licensed Practical Nurses (LPNs); a Director of Nursing (DON); and, depending on the size of the facility, perhaps an Assistant Director of Nursing (ADON); and, a Medical Director (MD), who is a licensed physician. The CNAs provide direct care to residents, including assistance with their ADLs, assistance with mobility, and medication administration. The staff nurse also provides direct care to residents beyond that which a CNA is able to provide. The Director of Nursing oversees all the nursing services provided in the facility. The Medical Director is responsible for establishing policies and procedures regarding care given to the residents. At a nursing home, a physician is usually either on-site or on-call 24 hours a day to help deal with medical issues. As for the number of staff, the federal requirements provide: “The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” 42 C.F.R. §483.30. None of this is required to exist at an assisted living facility. An assisted living facility is not required to have a nurse available 24 hours a day. Nothing requires the staff providing services to the residents must to be nurses. The facility need not have a Medical Director. No Director of Nursing oversees services in the facility. However, many facilities choose to have nurses on staff. Assisted living facilities may also bring in nurses from another type of medical facility to provide nursing services to residents at additional cost to the resident. The U.S. Department of Health and Human Services found in a 2000 study that a high percentage of staff at assisted living facilities were not knowledgeable about the normal aging process and at least 60 percent of the staff did not know how to manage difficult behavior properly among assisted living residents. Resident-on-resident abuse is one of the most common occurrences plaguing assisted living residences. Often one or both of the residents suffer from Alzheimer’s or another type of dementia. In these instances, the police must be notified but are often not. Several examples of resident-on-resident abuse have occurred: one resident hit another resident in the head with a cane causing severe injury; two residents pushing and shoving each other leading to a hip fracture in one of the residents; and, one resident beating another resident to death. Employee-on-resident abuse is another concern. In one assisted living case in Massachusetts, the plaintiff was a victim of abuse by an employee of the facility. The incident was videotaped. The videotape showed the employee smacking the resident in the face and the shoulders and pursuing him as the resident attempted to back away. The employee then went behind the resident and started slapping him on the buttocks causing the resident to fumble onto a chair to regain his balance. The resident eloped from the facility nearly a week later, was found about one mile from the facility, and was subsequently brought to a hospital. This case was brought to mediation and a settlement was reached. Resident elopement is a common occurrence that can often have disastrous consequences. Elopement is generally defined as wandering off, or leaving an area, without notice or permission. In several instances in Massachusetts, elopement led to serious injuries or death. Some examples include: a resident who wandered outside in the winter and subsequently froze to death; a resident who wandered away from the facility and drowned in a pond; a resident who eloped, fell down a hill, and sustained head trauma; and, a resident who wandered away from staff and fell out of a second floor window. Another concern for residents in assisted living facilities is eating. Residents choking on food while eating a meal has become an increasing concern, particularly due to the limited supervision given at assisted living facilities. In one instance in Massachusetts, a resident choked three times in about a one- year timeframe — the third choking incident being fatal. 5. Types of Claims Numerous types of claims can arise in an assisted living case. A common injury that occurs in the assisted living context is resident falls. Falls are an even bigger concern when there are multiple occurrences for one resident. A theory is that a resident should not fall in an assisted living facility, and any such fall gives notice to the facility that that person is not appropriate for an assisted living setting, in other words, “one and done.” In one assisted living case taken to verdict in Virginia, plaintiff fell during the evening and was placed back in bed (with a hip fracture) by a nurse aid who denied the fall ever happened. Plaintiff was alive at the time the case went to verdict and required ongoing nursing care because of her injuries. The jury returned a verdict of $1.5 million in compensatory damages. Conclusion ALFs aren’t nursing homes. In fact they are very different entities with very different standards. But the injuries their neglect can cause are every bit as devastating as nursing home abuse. Examine these cases carefully. Our aging population deserves no less. David J. Hoey is the Dean of the Keenan Ball Trial College whose mission is to give trial lawyers the system they deserve to win, to protect the community safety, and to ]\ܛۙ\H[[HX[XK\^x&\XXH[Y\]\Xš[\Y\ܛۙٝ[X]]Hۘ[][ۈ[[\YX X\H[X[X]Y[ ܈[ܙH[ YX\K۝X][\]ۈ[\\X]H]ܛ^K]ٙX\›و]Y^K