Boca Raton Nursing Home and Elder Care Abuse | Podcast with Joe Osborne

Good morning, Joe. How are you doing today?

Good morning, Renee. I'm doing great. Thanks for having me.

Glad you made the show, and I'm looking forward to this. Um, so let's start right away. What defines nursing home negligence and abuse, and how does it differ from other forms of elder care abuse?

It's a great question. Uh, Florida actually has and has taken legislative action To mandate nursing homes from the perspective of making sure the elderly are treated properly and receive appropriate care and attention, we have what's called Florida's Residents' Rights Statute, which is Florida Chapter 400.022, and that statute specifically provides protections for the elderly from. Physical and mental abuse, from neglect, from things like malnutrition and dehydration, and sets up a level of enforcement for the public and residents of these nursing homes such that if the nursing homes fail to comply with the residents' rights statutes and specific— its specific provisions, it allows for a cause of action and a lawsuit to be filed Against the nursing home by the family or its members, uh, to enforce the statute and to hold the nursing homes accountable when they violate the residents' rights.

I imagine there's many forms or signs of negligence, but what would be the most common ones that you find in nursing homes and why these signs are often overlooked?

It's also a great question. We often see cases where the elderly, once they're admitted to the nursing home, do not receive the type of care that you would expect or a loved, you know, a loved one would hope to see provided either to mom or grandmom or otherwise. We often see cases where, you know, patients go in with skin intact, with no issues with pressure sores or ulcers, But oftentimes, because they're either left in bed or neglected, these residents or patients develop significant pressure sores and ulcers, which cause, you know, which is skin breakdown and can lead to infection and sores and all kinds of problems. We often see issues with things like wandering, where certain alarms or preventative measures are not put in place for the elderly, and they either wander or neglected. And it's sometimes the situation where family members come to the nursing homes and they walk into their loved one's room and the resident isn't even there because they've wandered away. And there's been no alarm installed and they've been neglected. Certainly, we've seen plenty of cases where elderly people go into the nursing homes And they are fall risks. And that's either not recognized or it's not cared for. And the elderly people or the patients fall and suffer fractured hips, broken bones, head trauma, things of that nature. And lastly, we often see, you know, as elderly people get admitted, and especially if they're there for a little while, they may develop medical conditions in the facility that get unrecognized. or the progression of other medical conditions that are ignored and they're not sent to the hospital in a timely fashion or they get proper care. So those are the types of things that we see. Those meet the standards like I was talking about, meaning they're violations of Chapter 400 and often form the basis for situations where the nursing homes are violating the patient's rights.

Getting old is hard enough not to have it compounded with some of the things you're describing there. Seems horrific. How does the legal process address nursing home negligence, and what are the typical outcomes of these cases?

So the law recognizes casing, at least in Florida for sure, and certainly other states that have similar laws, and many, if not all, do, but they recognize cases for violations of Chapter 400. And oftentimes with some of the things we talked about in terms of how patients get treated, we look at issues involving nurse and patient ratios, whether those are nurses and CNAs. Many times in nursing homes, you need to look at how many nurses are assigned to how many patients. A better way to say it is what's an individual nurse's assignment in terms of patients? If a nurse is being assigned 35 patients for a given evening, then, you know, that's just— you're asking for problems because you're asking one person to do too much. So from a legal standpoint, we'll look at Chapter 400, we'll look at the nurse-patient ratios for when things go wrong. And many times we'll find CNAs and aides and RNs who have been assigned way too many patients, which leads to issues. And then we can file lawsuits where Chapter 400 has been violated, both from a care and neglect standpoint. In Florida, one of the things we have to do under the statute is go through a pre-suit period where we notify the nursing home of our potential claim. There's a 75-day informal process of exchanging information. It requires mandatory mediation, so the parties can sit down and have to sit down and, you know, have to sit down and meet and decide whether or not we agree on certain things and whether claims can be solved or resolved without the need of litigation. But if that, you know, if the resolution cannot be reached informally in the pre-suit process, then we can file a lawsuit in state court against the nursing home, again, for violations of Chapter 400 and neglect.

What would be an acceptable number of patients-to-caregiver ratio? Is there an accepted number in the industry?

That's another great question. You know, it really all depends on the level of care. So for instance, an RN is certainly more qualified to care for a greater number of patients, and they certainly can do things that a CNA cannot. For instance, RNs can pass medications. They can do certain things. They're not physicians, but as a skilled nurse, they can do more things from an interventional standpoint than an aide may do. So an RN, in terms of her patient load, certainly can be somewhat greater than what a CNA or an aide may be able to handle. And, you know, a lot of it sometimes depends upon the acuity of the patients. How sick are the patients? You know, what, what are some of the underlying conditions? And all that has to be factored in in terms of coming up with that idea and that statistic, let's say, for a given night. I can tell you that we do that analysis when we look at a case. And I'm sure it won't surprise you that over 90% of the time we find out and figure out that the nurse-patient ratio for whatever particular day that may be in question in our case is, is generally off. And it's, it's, it's pretty obvious as to why certain things got neglected or didn't happen. Just people are overworked.

It must be very challenging for families. Um, what do they face and In terms of challenges when trying to prove negligence in a nursing home setting?

Cover-up, cover-up, cover-up. I can't tell you how many times we've looked at nursing home charts and where symptoms or problems were either ignored because, let's say, a medical condition progressed or an incident happened or a fall occurred, and either there's an absence of charting, meaning that they purposefully did not put something in the medical records in order to document it, when we know something happened, or even situation where the charting has been changed, where it's been scribbled over or it's been changed, or pages have been removed and replaced with, you know, other documentation. It's not uncommon in these nursing homes to see that. And, you know, without getting either a lawyer or an expert or both— we have handwriting experts and other documentation and medical record experts that we can look at, you know, we can have look at charts And, you know, we can easily identify either where there has been an absence of documentation purposefully, or, uh, you know, even worse, where documentation has been changed after the fact.

I don't know if the landscape has changed, uh, when it comes to nursing home negligence over the years, if it's gotten better or worse. Um, have advancements in the legal practice or changes in elder care standards materialized?

Yeah, that's, it's a difficult situation because of the, of the level of care and the quality of care of many nursing homes. There are unfortunately not a lot of nursing homes that are functioning out there without insurance. And when I say insurance, I mean liability insurance such that if your loved one goes into a facility and something bad happens, And you want to bring a case for a violation of Chapter 400, many of these nursing homes are no longer insured for liability, or they're very underinsured. So when you're considering a facility for your loved one, there's nothing wrong with asking the question: What kind of insurance does the nursing home carry? And does something if something goes wrong, will the nursing home be insured enough to which if I have to bring a case, you know, I'll have the ability to do that? Because without proper coverage and backing and financial wherewithal, the nursing homes almost have a license to treat your loved one however they want. And it's a big question to ask because in the last 10 years, we've seen the development of a lot of insurance companies not insuring nursing homes or nursing homes making the choice of not carrying liability coverage.

Is there a case or a situation that, you know, you can talk to us about that your firm handled in a nursing home negligence case?

Absolutely. It was a very sad one where a relatively young lady in her 70s did develop some memory issues and, you know, had got admitted to a nursing home by her family. And, you know, she was at risk for falling because of her cognitive dysfunction. She was also at risk for wandering because of her memory and cognitive issues. And it was a classic case where she needed to have alarms on, meaning if she tried to get out of— she needed to have bed rails up. She needed to have an alarm in place such that if she tried to get out of bed by herself, Um, and then, you know, there would— an alarm would notify the nurses in case she fell, uh, or in case she tried to wander. Well, her family comes to visit her one evening and she's not in the room. And this is like on a Tuesday night, so it's— and it's early, it's around dinner time. And no one can find the resident. She apparently had gotten up She had wandered. The bed rails had been down. The alarm that had been ordered by the physician had not been placed, so it never went off, and they couldn't find her. Unfortunately, after about 15 minutes, she was found slumped against a chain-link fence outside the nursing home with hundreds and hundreds and hundreds and hundreds of red ants all over her. And she had been bitten so many times by the red ants that they rushed her to the hospital, but she died from the attack of the red ants and, uh, unfortunately didn't make it. But it was a situation to where that obviously never should have occurred. If the bed rails had been up and the monitor had been on, uh, the alarms would have immediately gone off as she tried to get up, and the nurses would have been able to obviously prevent her from leaving the facility. But, um, that poor lady died a horrible death. You can only imagine.

Such a, such a sad story. I really appreciated your insight again today, um, and, uh, hope to see you soon.

Thank you, Renee. Always a pleasure.