California Elder Abuse Lawyer Blog

Helpful tips when facing the discharge of a loved one from the hospital:

Because all of the rules, regulations and differences in levels of care can be confusing and over-whelming to patients and families, I recommend that almost from the moment of admission, to take the time to seek out the discharge planning personnel in your loved one's hospital. This person can be a nurse, a social worker or a 'discharge planner'. Talk to this individual on a daily basis. Keep abreast of your loved one's physical progress with the physicians and discuss changes with the discharge planner. He or she will also have access to your loved one's medical record and will read the physician's daily notes. Seek input and express your concerns, financial and otherwise. Visit facilities suggested by the discharge planner. Interview home care agencies if appropriate.

Finally, ask your discharge planner whether the facility you contemplate choosing is insured. If they don't know, ask the facility you are contemplating whether they carry liability insurance. This is particularly essential when considering a small, home-like RCFE. Responsible operators of elder care facilities carry liability insurance. This is an important and little known piece of information that will assist you in making the very best and most informed choice for your family member.

Posted by: Denise A. Platt, RN, JD with Law Offices of Jody C. Moore, APC

California 'Levels of Care': A Residential Care Facility for the Elderly As an Alternative to Skilled Nursing Facility Care

If the patient is not receiving any skilled services and requires assistance with positioning, feeding, bathing, grooming, dressing, walking, and/or must be in a secured environment related to cognitive impairment, a 'lower level of care' such as a residential care facility for the elderly ('RCFE') often times known as a 'board and care' may be appropriate. It is very important to thoroughly investigate to ensure that the RCFE is capable of providing for an individual's needs such as secured doors and perimeters if required. It is equally important to be sure that an RCFE does not accept a patient whose level of care is too high and/or has medical conditions that are specifically prohibited such as patients who require skilled nursing care, who have serious bedsores, or who are bedridden. There are also many 'restricted' conditions that require on-going professional care from an outside licensed home health care agency if a patient is admitted to an RCFE.

A factor that heavily influences a family's decision regarding appropriate discharge might be financial. Most 'skilled' services are reimbursed by Medicare or Medicare Advantage plans, but 'custodial' services are not. Also, Medi-Cal might reimburse someone for long term custodial care in a nursing home if they qualify financially, but Medi-Cal does not pay for an RCFE. Many times this factor causes elderly persons who require physical assistance or who are suffering from dementia to be confined to a nursing home because Medi-Cal will not pay for custodial care in the RCFE environment.

Posted by: Denise A. Platt, RN, JD with Law Offices of Jody C. Moore, APC

The Role of Discharge Planning

These entries will discuss in three parts the transition of an elder who normally lives at home, maybe with some assistance or in-home caregivers, but then is hospitalized and needs more extensive care after treatment. Let's say, mom was living at home but had knee surgery, or was hospitalized for treatment of pneumonia which left her weakened, or perhaps she had a fall and broke a bone. In today's world, hospitals tend to discharge these types of patients who clearly require further care pretty quickly. Hence the adage, "discharge begins at admission".

A hospital will assign a discharge planner to the case and assess what type of support the patient has in the home. The discharge planner has an obligation to determine whether a discharge to home would be safe for the patient. An elderly person with a significant injury (broken leg) or who had recent surgery would not likely be a candidate to return home if they live alone unless they can afford round the clock care giving to assist with toileting, grooming, transfer and repositioning and meal preparations.

Even if the patient lives with loved ones, their care needs might be too high to return home. For example, many patients leave the hospital requiring additional services that must be provided by professionals like physical and occupational therapies. Perhaps they need dressing changes for surgical or other types of wounds. Perhaps they need IV antibiotic therapy for infection. These are often referred to as 'skilled' services. Other times patients require less complex 'custodial services' which are more assistive type services with activities of daily living such as eating, bathing, dressing and grooming. This type of service is also called 'unskilled' service.

Continue reading "California Nursing Homes and Assisted Living: How Do You Know Which Level of Care is Right? (Part 1 of 3)" »

I was heartened to read this article in our local paper regarding a group seniors in a local mobile home park who look after one another. Called the "Silver Circle", each member of the group is responsible one day a week to call seniors in their park who live alone each night to make sure they are alright. What a fabulous idea. I remember when my grandmother, Ruth, lived at Leisure Village, she and another friend called each other each morning and evening at a time certain. They had an agreement: If the call didn't call, something was wrong. Help would be summoned. This provided a great deal of comfort to my grandmother knowing that if something happened during the night, if she had fallen and became ill and could not get to a phone, she would be discovered within hours if her friend did not receive her scheduled call. The Silver Circle expands on that idea and surely brings the same measure of comfort to this community of elders.

A recent study published in the May issue of the American Journal of Infection Control found the correlation between low staffing levels in a nursing home and failure to follow infection control protocols. It has long been argued in nursing home neglect cases that having sufficient numbers of qualified staff is the most important factor in ensuring good patient outcomes. This study provides further proof of that position. Since infections are the leading cause of death in nursing homes, responsible for nearly 400,000 deaths per year according to a news release relating to this publication, the importance of having sufficient staff and nursing home environment cannot be overstated.

Why would nursing homes fail to provide sufficient staff to meet the needs of that its residents? The plain truth is that because staffing is the number one most expensive line item on any nursing home budget. Increasing staffing makes nursing homes less profitable.

How does low staffing cause breach of infection control protocol? The answer is that nurses and nurse's aides who are well-meaning and (hopefully) properly trained simply do not have enough time to meet the needs of all the residents they are assigned to care for and they are more likely to be hurried and skimp on infection control measures. To illustrate, when providing care to too many residents in an environment of chronic short-staffing, the floor nurses and aids are often put in the position of having to make the uncomfortable choice of letting the patients' call bells ring unanswered or taking a few extra minutes to wash their hands between caring for patients.

Continue reading "California Nursing Homes that Skimp on Staffing Risk Infecting Patients" »

California Senate Bill 558 (Simitian) has passed the Senate Judicial Committee and is slated to go to the Senate Floor on or before May 13. This bill lowers the burden of proof for physical elder abuse act claims from clear and convincing evidence to a preponderance of the evidence. The preponderance standard requires the plaintiff prove it was more likely than not that their loved one was abused or neglected. The clear and convincing standard is not quite as high as a criminal standard (i.e. beyond a reasonable doubt), but requires a jury to be convinced that neglect or abuse occurred.

It seems fundamentally unfair to me that frail, elderly victims, whom the legislature has already deemed worthy of special protections, are subjected to a legal standard which is much higher than other civil litigants who are injured as a result of less egregious conduct, i.e. negligence. Also, it seems fundamentally unfair that this class of litigants actually has to meet a higher burden of proof when seeking elder abuse act remedies for physical abuse and neglect, but that the higher standard for elder financial abuse does not apply. SB 558 makes sense because it makes the legal standard for neglect and abuse cases consistent with the standard for financial abuse standards and other claims for serious personal injury.

When I meet a new client, who is profoundly affected by the injury or death of a loved one in a nursing home, I take the time to explain to them all the procedural hurdles which stand between the victim and justice. The list is mighty long, and while the typical layperson doesn't appreciate the subtle differences between "clear and convincing" and "preponderance" burdens of proof, they do understand that it is harder to obtain a verdict for elder abuse act remedies than a car accident or a slip and fall. I am often asked: "How could that be? Why is an elderly victim, who should have more access to justice because of their particular frailties, not less, subjected to a much higher standard?" I am unable to provide a cogent answer.

Continue reading "California Proposed Elder Abuse Legislation May Lower Burden Of Proof " »

Atypical antipsychotic drugs are approved by the FDA for treatment of mental illness, including schizophrenia and bipolar disease. Side effects include an increased risk of death in the elderly population with a diagnosis of dementia. Under Federal Medicare Guidelines, only drugs being used for medically accepted indications are eligible for reimbursement. Federal Medicare Guidelines also set standards to ensure that nursing home residents are free from unnecessary drugs, such as drugs used in excessive doses or for excessive durations.

With this background in mind, the Office of the Inspector General collected data relating to atypical antipsychotic use in nursing homes during the year 2007 to determine compliance with the guidelines. Click here for the official OIG report.

The study includes the following findings:

Continue reading "Study of Psychotropic Medications in Nursing Homes: Confirms Off-Label Use, Use in Patients With Dementia, and Unnecessary Use " »

Typically, when a family member comes to my office, it is because their loved one has suffered a serious injury or even death under surprising or suspicious circumstances. We are called upon to review clinical charts and records and consult with experts to determine whether anyone did anything wrong and, if so, how egregious was the misconduct. In prior posts, I blogged about the heightened pleading standards associated with an elder abuse claim. This blog expands upon the topic of proving a knowing disregard of someone's health or safety, or providing corporate liability for authorizing or ratifying misconduct, by finding false charting in a medical record.

Fraudulent medical records can be used to show any manner of problems with a facility that elects to "skirt the rules" and offer after-the fact "paperwork compliance" rather than the care the patient needs. Below are some of the ways in which a frauded record may prove your case:

1. Uncovering the fraud might actually reveal the true condition of your loved one, such as when abnormal vital signs have been changed to look normal.
2. A changed medical record might be used to show that a nurse knew a certain fact (like a fall risk factor), but later changed the record to show no risk.
3. Frauded records might also serve to prove that a medical condition requiring attention went unnoticed for an extended period of time, such as when a time or date is altered to make it seem a change in medical condition happened too quickly to intervene, rather than over time.
4. Rote charting, sometimes referred to as "dry-labbing" can be used to show care was documented, but not actually provided, such as the same person documenting 3 shifts per day for 30 days in a row that a patient was turned and repositioned every 2 hours to prevent formation or worsening of bedsores.

Continue reading "How does a Fraudulent Medical Record Help Prove Your Case?" »

Gathering records is an important step in the litigation process. In Elder Abuse cases, there are several different records that need to be collected in order for an attorney to review a case in its entirety. The following is a list of records that need to be gathered when considering the merits of a lawsuit:

Medical Records: Records need to be gathered from the facility where the incident occurred (i.e. Skilled Nursing Facility, Residential Care Facility for the Elderly, Hospital). These records will allow the attorney to review (examine) the care and treatment that the facility provided to your loved one.

Death Certificate: If your loved one has passed away as a result of the insufficient care and treatment he or she was given in a facility, the attorney must retain a copy of the death certificate.

Continue reading "Client's Corner: Gathering Records for a Lawsuit" »

In addition to marshaling "clear and convincing" evidence of recklessness, malice, oppression, or fraud to obtain enhanced remedies under the elder abuse act, if suing a corporation (like a nursing home chain), one must also show either (1) direct conduct by the managing agents of the corporation (like the president, CEO, nursing home administrator or nurse managers), or (2) authorization (before the fact) of the misconduct, or (3) ratification (after the fact) of the misconduct, or (4) knowledge of an unfit employee and continued employment nonetheless.

As I stated in prior posts, marshaling this evidence takes skill, insight, experience and sometimes, a bit of luck. Corporate liability might come in the form of deliberately under-staffing a facility or otherwise unreasonably limited the budget, supplies, and services. It might come in the form of concealing misconduct by falsifying or destroying records. It might come in the form unwritten (de facto) policies and procedures not to comply with the laws and regulations governing long term care facilities.

In one case, we were able to show that the facility administrator was aware of an employee's sexual misconduct with a resident, but failed to undertake any real investigation, failed to take any disciplinary action against the employee and then engaged in inappropriate sexual behavior with another resident. Because the facility was "on notice" of the employee's misconduct, and failed to take action to ensure it did not happen again, we were confident in our corporate liability position.

In another case, we were able to show that records were created after a fall to show that, prior to the fall, certain precautions and interventions were taken to minimize the fall risk or to minimize injury if the fall, in fact occurred. In this way, a chart was created to give the impression that proper care was provided before the fall, and therefore, that the fall was inevitable. By deconstructing the medical record, and casting doubt on the truthfulness of these records, we were able to show that management level staff took action after our client was injured to cover up their neglect.

These are but a few examples of the kinds of evidence which may be available in an elder abuse case to hold a corporation accountable when an elder is the victim of egregious neglect. If the case is improperly focused on the mistake of a low-level employee, chances are enhanced remedies under the elder abuse act will not be available.

May is National Elder Law Month, according to the National Academy of Elder Law Attorneys, Inc. Attorneys who specialize in providing legal services to seniors are organizing around the country to put on educational seminars, provide pro bono services, and to raise awareness in communities regarding services available to seniors and people with disabilities.

Elder Law, as a descriptor, is best used to describe legal services involving estate planning, wills, trusts, guardianship and capacity issues, special needs trusts, and tax planning. Typically, "elder law" attorneys draft documents and practice in probate court (as opposed to civil court). An elder law attorney does not necessarily have the expertise and resources to litigate an "elder abuse" case.

An Elder Abuse attorney, on the other hand, does not typically handle the transactional work of wills, trusts, and planning. Rather, they have special skills and expertise in handling complex personal injury litigation, with in-depth knowledge of the laws governing nursing homes, doctors, nurses, and other providers of care to the elderly.

Therefore, when you see the term "elder law" attorney, do not assume the attorney has experience actually filing, investigating, and trying an elder abuse case. By the same token, if you know an elder abuse attorney, do not assume they have estate planning know-how. You have to ask the right questions to find the right person for the job.

I previously blogged about the differences between a medical malpractice claim and elder abuse / neglect claim. Elder Abuse is a growing field of law and many plaintiff attorneys are motivated to take these kinds of cases based on the allure of the heightened remedies described therein (attorneys fees, and potentially punitive damages). However, elder abuse/neglect cases are not easy to prove. Recall, in order to recover general damages (if the elder is deceased) and attorneys' fees, a plaintiff must prove recklessness, malice, oppression, or fraud. Moreover, to prove punitive damages, one must prove malice, oppression or fraud. To prove punitive damages against a corporate employer (like a skilled nursing facility) requires a showing of advance knowledge of the unfitness of an employee or authorization or ratification of the wrongful conduct by a managing agent of the corporation. Whew! That's a lot of hurdles between injury and accountability.

The standard of proof is also elevated. When financial abuse is proven by a preponderance of the evidence, the victim may recover general damages and attorneys' fees and costs. However, clear and convincing evidence is required for pre-death pain and suffering. In an action based upon physical abuse or neglect, in order to recover any of the enhanced remedies, the standard of proof is clear and convincing evidence.

Recklessness means the abuser knew it was highly probable his conduct would cause harm, and he or she knowingly disregarded the risk. Distinct from malpractice, or negligence, recklessness requires more than just a failure to use reasonable care under the circumstances.

Continue reading "California Elder Abuse Law: Proving Recklessness, Malice, Oppression, or Fraud" »