Media Center

By James Phelan

Unfortunately, resident injuries and even death can happen at care facilities such as nursing homes and assisted living facilities. Take, for example, the recent case of Lucy Garcia.

Lucy was a patient at the Arbors of Oregon, a nursing home in the Toledo, Ohio, area. Lucy, 72, died of sepsis after developing a pressure wound. Her family believes it was caused by the staff at the nursing home not providing proper care for Lucy.

In the autopsy, the coroner ruled Lucy’s death a homicide. The case has since made national news as the family intends to sue the nursing home.

Nursing homes are held to a high standard of care and must adhere to certain industry standards promulgated by both federal and state laws regarding their care of seniors. Under the federal Nursing Home Reform Act of 1987, all nursing homes that receive Medicare or Medicaid funds are required to maintain safe facilities. They also are required to be free of elder abuse.

States and municipalities impose some other regulations. If there are no actual damages to a nursing home resident, but there is failure to comply with regulations, an attorney general may bring an action against the nursing home.

Medical Neglect vs. Abuse

Medical neglect can also become a form of abuse inflicted upon nursing home residents. Understanding the differences between neglect and abuse is important. Abuse happens when a caregiver in a position of trust intentionally targets and harms the patient. In contrast, unintentional carelessness or recklessness generally causes neglect.

An estimated five million older Americans are abused every year and many of them live in nursing homes, according to the National Council on Aging. Among the most common symptoms of abuse or neglect are bedsores leading to infections, physical pain, head injuries and broken bones.

The criminalization of health care negligence in nursing homes refers to the practice of legally charging health care workers or nursing home facilities with criminal offenses when their negligence results in serious harm or death to residents, potentially including situations where neglectful care is deemed so egregious that it constitutes a criminal act, rather than just a civil liability.

Not all instances of nursing home negligence rise to the level of a criminal offense. Typically, the conduct must be considered reckless or demonstrate a deliberate disregard for resident safety to warrant criminal charges.

Examples of situations that could lead to criminal charges:

• Willfully withholding necessary medication or treatment
• Failing to provide adequate nutrition or hydration, leading to malnutrition or dehydration
• Leaving a resident unattended, resulting in a serious injury
• Physical or verbal abuse of a resident

According to the Nursing Home Abuse Center, employers can help prevent elder abuse by:

• Creating solid patient care policies and procedures
• Fostering frequent visits from volunteers and social workers
• Installing quality monitoring systems
• Providing regular training to employees on elder abuse and neglect

In addition, a risk management plan for long-term care should:

• Establish an effective regulatory affairs program that considers federal, state and local laws and regulations for all service components and jurisdictions.
• Track adverse events by shift, location and type of event to facilitate the identification of risks and implementation of appropriate corrective actions.
• Conduct comprehensive resident assessments using RAIs, and document all problems or issues in the resident’s care plan.
• Appeal any incorrect deficiencies on the CMS statement of deficiencies and follow through with all elements required by a plan of corrections.
• Develop a comprehensive corporate compliance program.
• Be aware of accreditation standards from CARF-CCAC and the Joint Commission and consider seeking accreditation if the organization has not already done so.
• Conduct vulnerability assessments of high-risk clinical care ​processes in long-term care.

Employers in this industry should also have the proper insurance to guard against the impact of a lawsuit alleging medical errors or abuse. It could help the business avoid disruption or even closure.

For more information, visit our Health Care and Aging Services Page or contact us below: