Can you sue for Bedsores or Pressure Sores?

bedsore lawyer

2019 Law Firm added Free Booklet

Bedsores should not happen while in a nursing home or hospital. Often they are due to neglect and negligence.

Bedsores, Pressure Sores or Decubitis Ulcers are not the fault of the patient. At a hospital or nursing home there are federal laws in place to protect patients and assure they get the proper care. When these standards of care are not used sores can develop. Simple duties like turning an immobile patent frequently to relieve pressure, proper cleaning an hygiene are sometimes not provided. If a sore develops the patient has now become a victim. The sores can cause extreme pain and suffering and unfortunately even death. You can sue. And you have every right to do so and get financial compensation. Depending on the case, monetary awards can be in the millions. Below are some of the different types of lawsuits relating to sores.

Medical Malpractice

Medical Malpractice cases arise when a health care practitioner departs from the accepted standard of care in the medical community. In more simple terms, when a hospital, doctor, nurse, practitioner commits a serious error in his/her care and treatment, which results in further injury to the patient. Some common examples are failing to diagnose the bedsore; failing to report bedsores or pressure sores; failing to admit a patient into the hospital for bedsores when necessary; and failing to perform a medical procedure or provide treatment for bedsores that was otherwise indicated.

FREE BEDSORE FACTS BOOKLET>

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Nursing Home Liability

The elderly population frequently suffers due to serious neglect once they become patients or residents in nursing homes or any long term care facility.  Some critical issues relating to sores are: over or improper medication; lack of supervision; inadequate wound care leading to infections; not reporting the issue in a timely manner and overall neglect.

The severe injuries that patients experience along with the constant pain and suffering associated with bedsores are often the result of preventable situations. In our experience in handling these types of cases we have found frequent examples of poor care planning; lack of stimulation; failures to turn and position patients; failure to provided adequate pressure relief devices to patients; and unbelievably, failure to change adult diapers and failure to provide sufficient quantities of food and water. As a result of neglect in Nursing Homes, the illnesses range from severe infections and amputations, to dehydration and, unfortunately, death. Bedsores and pressure sores often lead to further infections and illnesses.

Hospital Negligence

At one time or another we all go to hospitals. While patients there, we have the right to expect quality medical care and treatment.  The unfortunate reality is that there are often tragic outcomes that are the result of medical malpractice which should never occur. This is especially true with bedsores.

Hospital Negligence occurs when there are “departures in the standards of good and accepted medical practices” that one should be able to expect in the local medical community given the current state of medical treatment and technology. These departures in the standard of care can stem from negligent treatment on the part of Doctors, Surgeons, Specialists, Lab Technicians, Physician Assistants, Nurses, Nurses Aides, Therapists, Administrators, Pharmacists and any other member of the Hospital Staff whose conduct, actions, or inaction, causes injuries and suffering that should not have occurred.

Some examples of Hospital Negligence include failure to provide proper medication or medical devices; failure to provide proper monitoring and supervision; failure to order consultations to other medical specialists; failure to diagnose bedsores in a timely fashion; failure to prevent infection and amputation; failure to turn and position the patient resulting in pressure sores, bedsores or decubitus ulcers; failure to perform a medical procedure or surgery properly; failure to warn patient of risks of a surgery or medical procedure; failure to keep family members informed regarding medical decision making; and failure to provide safe and proper discharge instructions.

Wrongful Death

This type of lawsuit occurs when a spouse or close relative has a right to recover when a loved one dies due to the sores or a medical complication that was related to the sores. Recovery is from the at-fault or negligent party. Recovery can include loss of income, services, comfort and society. New York has a very restrictive and complicated wrongful death statute. Our knowledgeable lawyers take you through it one step at a time. We understand that dealing with the loss of a loved one is not easy, so we are extremely sensitive when dealing with family members. Unfortunately, left untreated or not treated in time, bedsores can rapidly progress from stage 1-4 and lead to further complications often resulting in a wrongful death.

If you or someone you know is a victim of bedsores, the first thing to do is get the stage of the sore identified and immediate and proper medical attention. If you think you have a lawsuit then contact me on how to proceed. You can also begin an evaluation online by clicking here. We can even help you get better medical attention at the same time. Feel free to email about these matters at bedsores@RaphanLaw.com

Regards, Brian

What are the facts about your rights as a victim of bedsores?

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Often from the onset of bedsores, also described as pressure sores or decubitus ulcers, victims in a hospital or nursing home are led to believe it is their fault. They may be led to believe they don’t have a right to sue and that there is no chance for compensation. It’s simply not true.

Below are some facts about lawsuits and your rights as a patient and victim.

  1. You are able to sue for and recover a monetary award from new injuries and infections and the aggravation of old ones caused by bedsores or pressure ulcers.

  2. The defendants insurance company may ask you for a recorded statement describing the appearance of bedsores and your treatment. Remember you have no obligation to give them such a statement, nor is it wise to do so.

  3. The defendant’s insurance company will ask you for authorizations to obtain your medical records. DON’T DO IT. Let your attorney release your records after he or she has reviewed them. It’s best not to offer information by yourself. 

  4. Some insurance companies will offer you money to settle the case before you contact an attorney. In this situation the insurance company knows they will have to pay out money and they hope to settle the claim before you hire an attorney who can negotiate and demand a higher amount. Always consult an attorney if an insurance company is offering you money. By doing so you will in all likelihood increase your net recovery even after taking out the lawyers fee.

  5. Once a bedsore case is settled and the defendant is released, regardless of whether you make a full recovery or not, the money you received cannot be taken away, it is your money…tax free.

  6. Continue to full article>

Use our Free Bedsore Lawsuit Evaluator> or feel free to contact me for more information.

Brian A. Raphan, PC  email: bedsores@RaphanLaw.com

Medicaid isn’t just for Nursing Homes: #Homecare

Traditionally, Medicaid has paid for long-term care in a nursing home, but because most individuals would rather be cared for at home and home care is cheaper, all 50 states now have Medicaid programs that offer at least some home care. In some states, even family members can get paid for providing care at home.

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Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify. Medicaid home care services are typically provided through home- and community-based services “waiver” programs to individuals who need a high level of care, but who would like to remain at home.

Medicaid’s home care programs are state-run, and each state has different rules about how to qualify. Because Medicaid is available only to low-income individuals, each state sets its own asset and income limits. For example, in 2019, in New York an applicant must have income that is lower than $845 a month and fewer than $15,150 in assets to qualify. But Minnesota’s income limit is $2,250 and its asset limit is $3,000, while Connecticut’s income limit is also $2,250 but its asset limit is just $1,600.

States also vary widely in what services they provide. Some services that Medicaid may pay for include the following:

  • In-home health care
  • Personal care services, such as help bathing, eating, and moving
  • Home care services, including help with household chores like shopping or laundry
  • Caregiver support
  • Minor modifications to the home to make it accessible
  • Medical equipment

In most states it is possible for family members to get paid for providing care to a Medicaid recipient. The Medicaid applicant must apply for Medicaid and select a program that allows the recipient to choose his or her own caregiver, often called “consumer directed care.” Most states that allow paid family caregivers do not allow legal guardians and spouses to be paid by Medicaid, but a few states do. Some states will pay caregivers only if they do not live in the same house as the Medicaid recipient.

To find out your Medicaid home care options, feel free to email or give me a call.

Regards,

Brian

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Questions? Contact us at Brian A. Raphan, P.C.

Brian A. Raphan, P.C.
7 Penn Plaza, 8th Floor | 7th Avenue between 30th and 31st Street | New York , NY 10001 http://www.raphanlaw.com
Phone: (212) 268-8200 (800) 278-2960

State, Not Nursing Home, Must Pay Fees of Residents’ Court-Appointed Guardianship Attorney

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In two separate cases, a Maryland appeals court rules that a nursing home does not have to pay attorney’s fees to an attorney appointed to represent residents in guardianship proceedings. Rather, the state must pay the fees, at a much lower reimbursement rate. In Re Jon (Md. Ct. Spec. App., No. 361, Feb. 8, 2019) and In Re Selby (Md. Ct. Spec. App., No.360, Feb. 8, 2019).

When family members were not able to assist with the Medicaid applications of two nursing home residents, the nursing home filed petitions for guardianship of the residents, Hyung Bok Jon and Margo Selby. The court appointed attorney Nina Helwig to represent both residents. The court-appointed guardians for the residents and Ms. Helwig filed a petition for attorney’s fees. Ms. Helwig claimed that because both residents were indigent and could not pay the fees, the nursing home should pay them.

The nursing home opposed the fee petitions, arguing that the state is required to pay attorney’s fees when the ward is indigent. State law requires the state to pay attorney’s fee in a guardianship of the person case, but there is no attorney’s fee provision in guardianship of the property cases. A state rule interpreting the statute, however, provides that the state must pay attorney’s fees. Ms. Helwig argued that the nursing home benefited from her services because the residents needed a guardian to qualify for Medicaid and that the rate paid by the state was $75 per hour, which is $175 less than her hourly rate. The trial court ordered the nursing home to pay the attorney’s fees in both cases, and the nursing home appealed.

The Maryland Court of Special Appeals reverses both cases, holding that the state is required to pay attorney’s fees for indigent clients in guardianship cases. According to the court, the rule requiring the state to pay attorney’s fees is not inconsistent with the statute simply because the statute does not make a provision for attorney’s fees.

2019 Will Bring Social Security Beneficiaries the Biggest Increase in Eight Years

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The Social Security Administration has announced a 2.8 percent increase in benefits in 2019, the largest increase since 2012.  The change will put an additional $468 anually in the pocket of the average retired beneficiary.

Cost of living increases are tied to the consumer price index, and an upturn in inflation rates and gas prices means recipients get a boost in 2019. The 2.8 percent increase is higher than last year’s 2 percent rise and the .3 percent increase in 2017. The average monthly benefit of $1,422 in 2018 will increase by $39 a month to $1,461 a month for an individual beneficiary, or $468 yearly. The cost of living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $128,700 to $132,900.

And there is more good news: Unlike last year’s increase, the additional income should not be entirely eaten up by higher Medicare Part B premiums. The standard monthly premium for Medicare Part B enrollees will increase only $1.50 to $135.50.

For 2019, the monthly federal Supplemental Security Income (SSI) payment standard will be $771 for an individual and $1,157 for a couple.

Most beneficiaries will be able to find out their cost of living adjustment online by logging on to my Social Security in December 2018. While you will still receive your increase notice by mail, in the future you will be able to choose whether to receive your notice online instead of on paper.

For more on the 2019 Social Security benefit levels, click here.

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The Law Offices of Brian A. Raphan, PC

7 Penn Plaza, New York, NY 10001

www.RaphanLaw.com

2019 Guidelines Used to Protect the Spouses of Medicaid Applicants

The Centers for Medicare & Medicaid Services (CMS) has released the 2019 federal guidelines for how much money the spouses of institutionalized Medicaid recipients may keep, as well as related Medicaid figures.

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In 2019, the spouse of a Medicaid recipient living in a nursing home (called the “community spouse”) may keep as much as $126,420 without jeopardizing the Medicaid eligibility of the spouse who is receiving long-term care. Called the “community spouse resource allowance,” this is the most that a state may allow a community spouse to retain without a hearing or a court order. While some states set a lower maximum, the least that a state may allow a community spouse to retain in 2019 will be $25,284.

Meanwhile, the maximum monthly maintenance needs allowance for 2019 will be $3,160.50. This is the most in monthly income that a community spouse is allowed to have if her own income is not enough to live on and she must take some or all of the institutionalized spouse’s income. The minimum monthly maintenance needs allowance for the lower 48 states remains $2,057.50 ($2,572.50 for Alaska and $2,366.25 for Hawaii) until July 1, 2019.

In determining how much income a particular community spouse is allowed to retain, states must abide by this upper and lower range. Bear in mind that these figures apply only if the community spouse needs to take income from the institutionalized spouse. According to Medicaid law, the community spouse may keep all her own income, even if it exceeds the maximum monthly maintenance needs allowance.

The new spousal impoverishment numbers (except for the minimum monthly maintenance needs allowance) take effect on January 1, 2019.

TO LEARN MORE ABOUT THE BENEFITS OF MEDICAID PLANNING click here.

Home Equity Limits:

In 2019, a Medicaid applicant’s principal residence will not be counted as an asset by Medicaid unless the applicant’s equity interest in the home is less than $585,000, with the states having the option of raising this limit to $878,000.

Income Cap:

In order to qualify for Medicaid, a nursing home resident’s income must not be above a certain level. Most states allow individuals to spend down their excess income on their care until they reach the state’s income standard. But other states impose an “income cap,” which means no spend-down is allowed.

READ THE TOP 8 MEDICAID PLANNING MISTAKES >

Any questions? Email medicaid@raphanlaw.com

Regards,

Brian A. Raphan, Esq.

Keep an eye on your parents savings accounts, not just your own…

Protecting your assets should be on the radar for every baby boomer. It will help your elder years be less stressful and offer you more lifestyle and health care options. However, don’t let that sideline you from looking after your parents assets as they age and are less capable of managing their savings and investment accounts. Below is an article from The New York Times revealing what can happen if accounts and your involvement are overlooked.

Via The New York Times  By Tara Siegel Bernard 8/24/18

Caring for Aging Parents, With an Eye on the Broker Handling Their Savings

Tracey Dewart faced a daunting task last summer: moving her 84-year-old mother, Aerielle, from her Manhattan apartment to an assisted living facility in Brooklyn. Her mother, who has Alzheimer’s, didn’t want to go, but there was little choice after she was found wandering near her home on the Upper East Side several times.

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It was “physically and emotionally a horrible and overwhelming time,” said Ms. Dewart, 58. “It felt like there had been a death in the family as we had to sort through all of my parents’ belongings.”

And she was about to confront another ordeal — one that could serve as a cautionary tale for anyone who helps manage their parents’ money and, more broadly, anyone who does business with an investment broker.

To help pay for her mother’s care, Ms. Dewart relied on an investment account at J.P. Morgan Securities that her 89-year-old father, Gordon, opened at least eight years ago. The account was already paying expenses for Ms. Dewart’s father — who, after two strokes, was living in the residence that his wife was moving to — and for Ms. Dewart’s younger sister, who lives in a community for adults with developmental disabilities.

Around the time of her mother’s move, Ms. Dewart noticed what looked like unusual activity in the account, which she and her older sister had overseen for about four years. A closer look revealed that it was down $100,000 in a month.

“My own accounts were rallying, so I thought this was strange,” she said.

She notified the firm that something seemed awry. As someone who does research and policy analysis for a living, she also put her own skills to work.

She pored over piles of statements and trade confirmations, built spreadsheets and traded phone calls and emails with the broker who handled the account, Trevor Rahn, his manager and the manager’s manager. She hired a lawyer and worked with a forensic consultant.

After about six months, she learned that the account, worth roughly $1.3 million at the start of 2017, had been charged $128,000 in commissions that year — nearly 10 percent of its value, and about 10 times what many financial planners would charge to manage accounts that size.

In August 2017 alone, Mr. Rahn had sold two-thirds of the portfolio, or about $822,000, and then reinvested most of the proceeds, yielding about $47,600 in commissions, according to monthly financial statements and an analysis by Genesis Forensic Consulting, the firm Ms. Dewart’s lawyer hired.

A statement listed all 344 trades that month as “unsolicited” — meaning, in Wall Street terms, that they were the customer’s idea, not the broker’s. But Ms. Dewart said she had not authorized the transactions and had only discussed a few specific ideas with Mr. Rahn, including possibly selling some Exxon shares if cash was needed.

An August 2017 statement showed that the Dewarts’ portfolio was down about $100,000 in a month and that roughly two-thirds of the stocks in it had been sold in that time.

Something else was unusual. Mr. Rahn was selling stocks in small batches multiple times a day. In April 2017, he sold between 75 and 125 shares of Exxon eight times in one day, rather than all at once, generating commissions on each sale.

“These are not just bad choices,” said Laura Levasseur, the president of Genesis Forensic. “This is frantic trading.”

Ms. Dewart also discovered that the Exxon stock and other investments were being held in a margin account, which lets customers use borrowed shares to make bigger bets, potentially amplifying gains and losses. She said she never approved opening such an account.

“I had implicitly trusted Trevor because my father did,” she said. Her father had first put his investments in Mr. Rahn’s care when the broker was at Deutsche Bank, and had followed him to J.P. Morgan in 2010.

About five months after Ms. Dewart questioned Mr. Rahn’s handling of the account, J.P. Morgan had canceled 681 of the 1,499 transactions for 2017, crediting about $84,000 in commissions, according to Genesis. That left 818 trades and commissions totaling about $44,000 for the year — about 3.8 percent of the account’s value, still triple what many financial planners would charge.

Ms. Dewart considered taking J.P. Morgan to arbitration as allowed by the customer agreement, but she settled instead for a sum that she is prohibited from discussing.

In a statement, J.P. Morgan said, “The client agreed to an appropriate resolution of this matter in June.” The firm said it was committed to doing the right thing for its clients, and was “disappointed when any feel their expectations haven’t been met.”

Mr. Rahn, who still works at J.P. Morgan, and the two managers at the firm with whom Ms. Dewart dealt did not respond to emails seeking comment.Screen Shot 2018-08-25 at 10.40.46 AM

Ms. Dewart’s experience leaves many questions unanswered. Her broker was not authorized to trade without permission, so why did he? Why was such a large stock sold in so many small transactions? Were other customers subject to similar trading activity? She said a firm manager told her that there had been a system error — what kind?

The episode also underscores the murky regulatory territory that brokers inhabit. They are not necessarily fiduciaries, meaning they do not always have to act in a client’s best interest. Instead, brokers typically only have to recommend investments that are “suitable,” a lower standard. Ms. Dewart said Mr. Rahn’s supervisor had told her that “any transaction the adviser does is meant to be done with the client’s knowledge,” but that had not happened

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“I knew that I did not know enough about equities to sign off on a massive restructuring,” she said. “And he restructured twice.”

Excessive and unauthorized trading are among the top complaints in customer arbitration cases, according to the Financial Industry Regulatory Authority, or Finra. Just last year, the Securities and Exchange Commission issued an alert about churning, a term for excessive trading, to help investors identify warning signs.

There were 166 cases of unauthorized trading in 2017, 209 in 2016 and 145 in 2015, Finra said. There were 142 complaints for excessive trading in 2017.

Because Ms. Dewart settled her case, it was not included in last year’s count, suggesting that Finra’s statistics understate the number of complaints raised with brokerage firms. And many investors who settle such cases sign confidentiality clauses, securities lawyers said. (Ms. Dewart said she was unable to speak about the terms and conditions of her settlement.)

Commission-based accounts like the one Ms. Dewart had can be economical for investors who don’t require many changes to their portfolios. But because brokers are only paid each time they conduct a transaction, their interests are not necessarily aligned with those of their clients.

Big brokerage and financial services firms have been shifting to accounts that charge a flat annual fee for management services, reducing the potential for conflicts of interest.

The shift accelerated in anticipation of a consumer-protection rule crafted by the Department of Labor during the Obama administration that required all financial professionals to put their customers’ interests ahead of their own, at least when handling retirement accounts. Merrill Lynch went as far as banning commission-based retirement accounts. The rule was struck down by a federal appeals court in June, and Merrill has said it was considering reversing that policy.

In April, the S.E.C. proposed a new rule that it said would require brokers to put their clients’ interests first. Consumer advocates have come out against the proposal, arguing that it does not go far beyond what is already required of brokers.

“If the rule did what they say it does, we’d support it,” said Barbara Roper, director of investor protection at the Consumer Federation of America. “But it just flat doesn’t.”

A stronger rule may not have helped Ms. Dewart, but she said the current structure was stacked against consumers.

“There is a point,” she said, “where, out of sheer exhaustion, people surrender to the system.”

Read about using Trusts for Asset Protection>

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You may have signed a Living Will, but scary mistakes can happen at the ER

August 5 Washington Post/Health & Science

“Don’t resuscitate this patient; he has a living will,” the nurse told the doctor, Monica Williams-Murphy, handing her a document.

Williams-Murphy looked at the sheet bearing the signature of the unconscious 78-year-old man, who had been rushed from a nursing home to the emergency room. “Do everything possible,” it read, with a check approving cardiopulmonary resuscitation.

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The nurse’s mistake was based on a misguided belief that living wills automatically include “do not resuscitate” (DNR) orders. Working quickly, Williams-Murphy revived the patient, who had a urinary tract infection and recovered after a few days in the hospital.

Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama.

But health systems and state regulators don’t systematically track mix-ups of this kind, and they receive little attention amid the push to encourage older adults to document their end-of-life preferences, experts acknowledge. As a result, information about the potential for patient harm is scarce.

A new report out of Pennsylvania, which has the nation’s most robust system for monitoring patient-safety events, treats mix-ups involving end-of-life documents as medical errors — a novel approach. It found that in 2016, Pennsylvania health-care facilities reported nearly 100 events relating to patients’ “code status” — their wish to be resuscitated or not, should their hearts stop beating and they stop breathing. In 29 cases, patients were resuscitated against their wishes. In two cases, patients weren’t resuscitated despite making it clear they wanted this to happen.

The rest of the cases were “near misses” — problems caught before they had a chance to cause permanent harm.

Most likely, this is an undercount, said Regina Hoffman, executive director of the Pennsylvania Patient Safety Authority, adding that she was unaware of similar data from any other state.

Asked to describe a near miss, Hoffman, co-author of the report, said: “Perhaps I’m a patient who’s come to the hospital for elective surgery and I have a DNR order in my [medical] chart. After surgery, I develop a serious infection and a resident [physician] finds my DNR order. He assumes this means I’ve declined all kinds of treatment, until a colleague explains that this isn’t the case.”

The problem, Hoffman explained, is that doctors and nurses receive little if any training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms.

Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.

Research by Ferdinando Mirarchi, medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center Hamot in Erie, Pa., suggests that the potential for confusion surrounding end-of-life documents is considerable. In various studies, he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses.

In one study, for instance, he described a 46-year-old woman who is brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she is otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an Internet survey.

Only 43 percent of those doctors said they would intervene to save her life — a troubling figure, Mirarchi said. Because this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.

In another study, Mirarchi described a 70-year-old man with diabetes and cardiac disease who had a POLST form indicating he didn’t want cardiopulmonary resuscitation but agreeing to a limited set of other medical interventions, including defibrillation (shocking his heart with an electrical current). Yet 75 percent of 223 emergency physicians surveyed said they would not have pursued defibrillation if the patient had a cardiac arrest.

One issue here: Physicians assumed that defibrillation is part of cardiopulmonary resuscitation. That’s a mistake: They’re separate interventions. Another issue: Physicians are often unsure what patients really want when one part of a POLST form says “do nothing” (declining CPR) and another part says “do something” (permitting other interventions).

Mirarchi’s work involves hypotheticals, not real-life situations. But it highlights significant practical confusion about end-of-life documents, said Scott Halpern, director of the Palliative and Advanced Illness Research Center at the University of Pennsylvania’s Perelman School of Medicine.

Attention to these problems is important but shouldn’t be overblown, cautioned Arthur Derse, director of the Center for Bioethics and Medical Humanities at the Medical College of Wisconsin. “Are there errors of misunderstanding or miscommunication? Yes. But you’re more likely to have your wishes followed with one of these documents than without one,” he said.

Make sure you have ongoing discussions about your end-of-life preferences with your physician, your surrogate decision-maker, if you have one, and your family, especially when your health status changes, Derse advised. Without these conversations, documents can be difficult to interpret.

Here are some basics about end-of-life documents:

Living wills. A living will expresses your preferences for end-of-life care but is not a binding medical order. Instead, medical staff will interpret it based on the situation at hand, with input from your family and your surrogate decision-maker.

Living wills become activated only when a person is terminally ill and unconscious or in a permanent vegetative state. A terminal illness is one from which a person is not expected to recover, even with treatment — for instance, advanced metastatic cancer.

Bouts of illness that can be treated — such as an exacerbation of heart failure — are “critical,” not “terminal,” illness and should not activate a living will. To be activated, one or two physicians have to certify that your living will should go into effect, depending on the state where you live.

DNRs. Do-not-resuscitate orders are binding medical orders, signed by a physician. A DNR order applies specifically to cardiopulmonary resuscitation (CPR) and directs medical personnel not to administer chest compressions, usually accompanied by mouth-to-mouth resuscitation, if someone stops breathing or their heart stops beating.

The section of a living will specifying that you don’t want CPR is a statement of a preference, not a DNR order.

A DNR order applies only to a person who has gone into cardiac arrest. It does not mean that this person has refused other types of medical assistance, such as mechanical ventilation, defibrillation following CPR, intubation (the insertion of a breathing tube down a patient’s throat), medical tests or intravenous antibiotics, among other measures.

Even so, DNR orders are often wrongly equated with “do not treat” at all, according to a 2011 review in the Journal of General Internal Medicine.

POLST forms. A POLST form is a set of medical orders for a seriously ill or frail patient who may die within a year, signed by a physician, physician assistant or nurse practitioner.

These forms, which vary by state, are meant to be prepared after a detailed conversation about a patient’s prognosis, goals and values, and the potential benefits and harms of various treatment options.

Problems have emerged with the increased use of POLSTs. Some nursing homes are asking all patients to sign POLST forms, even those admitted for short-term rehabilitation or whose life expectancy exceeds a year, according to a recent article by Charlie Sabatino, director of the American Bar Association Commission on Law and Aging. Also, medical providers’ conversations with patients can be cursory, not comprehensive, and forms often aren’t updated, as recommended, when a patient’s medical condition changes.

“The POLST form is still relatively new, and there’s education that needs to be done,” said Amy Vandenbroucke, executive director of the National POLST Paradigm, an organization that promotes use of the forms. In a policy statement issued last year and updated in April, it stated that completion of POLST forms should always be voluntary, made with a patient’s or surrogate decision-maker’s knowledge and consent, and offered only to people whose physician would not be surprised if they die within a year.

This column is produced by Kaiser Health News, an editorially independent news service and a program of the Kaiser Family Foundation.

Article: Nursing Homes Routinely Mask Low Staff Levels

Via New York Times By Jordan Rau

ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government for years, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.

The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.

The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.

The payroll records provide the strongest evidence that over the last decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.

Stan Hugo with his wife, Donna, who is a resident at the Beechtree 
Center for Rehabilitation and Nursing in Ithaca, N.Y. Mr. Hugo 
tracks staffing levels at the skilled nursing facility.

At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.

Especially on weekends, he said, “It’s almost like a ghost town.”

Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.

Nursing Home Abuse Lawsuits >

“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine in Nashville, Tenn. “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”

David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.

“While staffing is important, what really matters is what the overall outcomes are,” he said.

While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.

The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best staffed days, Beechtree had one aide for every eight residents, while on its lowest staffed days, there was only one aide for 18 residents. Nursing levels also varied.

The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.

Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.

Mr. Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.

New rating method is still flawed

In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.

Payroll records at Beechtree show that on its highest staffed days, it had one aide for every eight residents, but there was only one aide for 18 residents at the lowest staffing level.CreditHeather Ainsworth for The New York Times

“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beachtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”

Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.

 

A family council forms

Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)

To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.

Sandy Ferreira, who makes health care decisions for Effie Hamilton, a blind resident, said Ms. Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.

“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Mrs. Ferreira said.

Beechtree declined to discuss individual residents, but said it had investigated these complaints and did not find inadequate staffing on those days. Mr. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.

In recent months, Mr. Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”

Mr. Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.

His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Mr. Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.

As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.

“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”

This article was produced in collaboration with Kaiser Health News, an editorially independent program of the Kaiser Family Foundation. The author is a reporter for Kaiser Health News.
A version of this article appears in print on , on Page A1 of the New York edition with the headline: Nursing Homes Routinely Mask Low Staff Levels. Order Reprints | Today’s Paper | Subscribe

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How To Spot Nursing Home Neglect Or Abuse?

justice engraved on courthouse

Nursing home neglect and abuse is often difficult to detect, and families should be on the lookout for common warning signs for physical, emotional and financial abuse.

Common warning signs of physical abuse are:

  • Untreated bedsores, pressure sores, wounds, cuts, bruises, or welts
  • Abnormally pale complexion
  • Bruises in a pattern that would suggest restraints
  • Excessive and sudden weight loss
  • Fleas, lice, or dirt on or in the room
  • Poor personal hygiene, unpleasant odors or other unattended health problems
  • Torn clothing or broken personal items
  • Bleeding around private parts
  • Bloody undergarments
  • Bruises around the breast/genital region
  • An unexpected look of fear from the elder when aide may be present

Common warning signs of emotional abuse are:

  • Intimidation through yelling and threats
  • Humiliation
  • Ignoring the patient
  • Isolating the patient from other residents and/or activities
  • Terrorizing the patient
  • Mocking the patient

Financial exploitation is another form of abuse. An unscrupulous caregiver may:

  • Misuse checks, accounts, or credit cards
  • Steal money, steal checks, or steal belongings
  • Forge signatures
  • Authorize withdrawals or transfer of monies
  • Steal the patient’s identity

No family is exempt from any of these possibilities. Abuse affects the rich and poor. Suffering sustained by the elderly ranges from financial, to emotional and physical. Abuse escalating to physical can result in severe infections, amputations, dehydration and, unfortunately, death. A lawsuit should be filed on behalf of your loved one to get the justice your family deserves. Compensation may cover the costs of treatment and recovery, as well as compensation for non-financial hardships such as pain and suffering.

If you suspect elder abuse of any kind speak up and demand answers of those in charge.

Feel free to contact me for more information or inquire about a lawsuit.

Sincerely,

Brian

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