Examples and Causes of Abuse in Skilled Nursing Facilities

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The nursing home and assisted living neglect attorneys of the Law Offices of Ben Yeroushalmi have litigated countless abuse cases involving skilled nursing facilities in Los Angeles and its surrounding areas for over 10 years and have received the best results for victims and their families. We have extensive experience investigating the causes of abuse in skilled nursing facilities. For additional information, contact our team of lawyers online or at (310) 623-1926.

Elderly patients in nursing homes or "skilled nursing facilities" are arguably the most vulnerable members of society and have a great need for legal assistance and representation. These people are often times totally dependent on medical staff for medicine, shelter, food, and assistance with daily activities.

Unfortunately, the potential for abuse and neglect in these facilities is exceedingly high. Patients are often left for long periods of time without any assistance, like being fed, being administered their necessary medications, and being helped to use the bathroom. As a result, millions of elders in the United States suffer from many issues, including malnutrition, dehydration, mismanagement of medications, and infections, which can and does lead to preventable death. The causes of these avoidable and unnecessary harms include the following:

• Understaffing

  Understaffing in nursing homes leads to substandard care, which frequently causes or contributes to avoidable illness, injury, and death. Multiple studies have shown understaffing negatively impacts overall quality of care and is positively correlated with elder abuse and neglect. However, in many of nursing home cases, there is a conscious decision by nursing home managers, directors, and administrators to understaff their facilities knowing full well that understaffing will negatively impact the overall quality of care provided their residents. (California Watch, Nursing Homes Received Millions while Cutting Staff, Wages (July 29, 2011).)

  Accordingly, California skilled nursing facilities are subject to a number of rules and regulations governing the type, number, and training of staff at facilities caring for elderly and dependent adults. For example, under federal law, a skilled nursing 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.) Similarly, under California law, a skilled nursing facility "shall employ an adequate number of qualified personnel to carry out all of the functions of the facility" (Health & Safety Code § 1599.1(a).) Health & Safety Code §§ 1276.5-1276.65 also quantifiy the minimum number of nursing hours at nursing homes by requiring nursing homes to provide a minimum of 3.2 nursing hours per patient per day. Finally, Title 22 of the California Code of Regulations requires nursing homes to employ staff to meet the needs of each resident in the nursing home at all times. (Title 22 CCR §§ 72329(a) & 72501(e).)

  Civil and criminal enforcement of regulations guiding nursing home staffing is well founded. Innumerable studies have shown that lack of adequate staffing has a direct relationship to the quality of care provided in nursing homes. As noted in the Journal of Nurses Economics (2006) Minimum Nurse Staffing Ratios for Nursing Homes, "the positive relationship between nurse staffing levels and the quality of nursing home care has been demonstrated widely." (See also Nicholas G. Castle, Nursing Home Caregiver Staffing Levels and Quality of Care, a Literature Review, Journal of Applied Gerontology (2008); Schnelle JF, et al., Relationship of Nursing Home Staffing to Quality of Care, Health Serv Res. 2004 Apr 39(2):225-50 [the highest-staffed nursing homes reported significantly lower resident care loads on all staffing reports and provided better care than all other homes.])

  Specifically, several studies have demonstrated a strong relationship between increased skilled nursing staff levels and reduced patient hospitalizations. (Grabowski, D.C., Stewart, et al., Predictors of nursing home hospitalization: A review of the literature, Medical Care Research and Review (2008); See also Konetzka, R.T., Spector, W. & Limcangco, M.R. Reducing Hospitalizations from Long-Term Care Settings, Medical Care Research & Review (2007).)

  Building on the principle that nursing homes should provide sufficient staff to care for their patients, California courts have emphasized that resident-patients have "the right to reside in a facility with an adequate number of qualified personnel to carry out all of the functions of the facility." (Shuts v. Covenant Hold Co. LLC (2012) 208 Cal App. 4th 609, 615.) Case law further emphasizes that a facility's conscious understaffing and poor training amounts to elder abuse, not just mere negligence. (See, e.g., Merron v. Superior Court (2003) 108 Cal App. 4th 1049, 1067 [The defendant hospital's failure to take remedial action despite having knowledge of complaints of inadequate staffing constituted reckless neglect and material grounds for plaintiff's elder abuse claim.]; See also Fenimore v. Regents of the University of California (2016) 2016 Cal. App. Lexis 231.) Given the robust relationship between understaffing at nursing facilities and quality of care, it is clear that the corporate or administrative decisions to understaff a skilled nursing facility amounts to reckless and malicious conduct that disregards a serious danger to elderly and dependent adults.

• Poorly trained and low-paid employees

  Elder abuse and neglect can also be attributed to undertrained and underpaid staff employed by the nursing home. These employees often do not have competent writing skills and/or little to no training in documenting the conditions of patients in the facility. Even though nursing home staff are usually responsible for preparing patient medical records in writing, "form" documents are frequently used and merely copied at the end of the working day, which are not accurate representations of the patients' diagnoses, conditions, or treatments.

  Elder abuse attorneys at the Law Offices of Ben Yeroushalmi in Los Angeles have personally identified patient records that are often complete works of fiction. Because patient records are carelessly filled out by often incompetent nursing staff, these documents sometimes show that care and treatment were provided to patients who in fact were not in the facility at the time the care was purportedly provided. Nurses and even physicians will go as far as signing orders and charts for patients who are no longer living, which evidences a concealment of a complete lack of care provided to those patients. For a discussion regarding medical records created "after the fact," see People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 CA3d 509.)

  The fact is that most of the employees working in nursing homes are paid egregiously low wages, which leads to exceedingly high turnover rates among nurses and nurse's aides. Nursing staff is often the most expensive cost for nursing home operators, which induces them to keep wages and salaries low to make more money.

• Profit motive of facility operator

  Nursing home owners and operators often intentionally divert resources away from patient care solely in order to make more profit. These resources include wages and salaries for nursing and other staff, medical and non-medical equipment to be used by facility patients, and funds used to maintain the overall safety of the facility itself. This usually occurs in "for profit" nursing homes, although "non-profit" nursing homes have also been known to engage in this practice. According to the California Department of Public Health Licensing and Certification Division, nearly 90 percent of all nursing homes in the country are "for profit" facilities.

  Experienced elder abuse attorneys will use these facts to impose punitive damage liability on defendant nursing homes, arguing that the nursing home's pattern of neglect is the direct result of its owners' and operators' unchecked and often malicious profit motivations.

• Inadequate medical care

  When an elderly individual is admitted to a skilled nursing facility, either from the hospital or from home, they usually lose their primary care physician because most of these doctors do not provide nursing home care. Most physicians are either unfamiliar with the care and treatment provided at nursing homes or are unwilling to work in nursing homes due to low compensation rates and travel time. As a result, elderly nursing home patients are forced to receive treatment from new nursing home doctors who have no familiarity with patient history and condition. These physicians are also not required by federal and state regulations to visit their patients more than once every 30 days. (See 22 Cal Code Regs § 72307; see also CFR § 483.40(c).)

  Nursing home doctors often have a "self-serving" mutually beneficial relationship with the nursing home only, with little to no relationship with their patient. A single physician may be responsible for dozens of patients in one facility and may and often do only perform short visits. During these visits, the physician may not even see the patient at all and will instead rely on the nursing home staff to update them about the elderly individuals' conditions and plans of care. This directly leads to the neglect of patients at these facilities.

• Lack of meaningful enforcement by regulatory agencies

  The lack of enforcement by regulatory agencies, such as the California Department of Public Health (CDPH), is not only another reason that elder abuse and neglect is left unchecked in nursing homes, but also why victims of abuse should seek an experienced elder abuse attorney. Although investigators of these agencies are dedicated to preventing and remedying acts of abuse and neglect, the system in which they are employed is designed to only prosecute the most extreme forms of misconduct. Defense attorneys frequently argue that no investigators expect to find any California nursing home that is not at varying levels of violation of applicable regulations. (See, e.g., People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 CA3d 509.)

  Virtually all skilled nursing facilities in California are issued deficiencies and citations by the California Department of Public Health. Yet, penalties for these violations may never be paid. A study by the CDPH concluded that even though penalties for a specific year were assessed at nearly $4 million, only around $800,000 was collected for that year.

  Further, the issue of abuse and neglect in skilled nursing facilities is heavily politicized and is the subject of lobbying efforts all around the country. Due to the efforts by wealthy medical industry lobbyists, reports containing findings and conclusions of citations of skilled nursing facilities are inadmissible in a civil trial as substantive evidence. As a result, findings of a citation or deficiency report may never make it into a courtroom as substantive evidence.

For additional information, get in touch with an experienced attorney. The nursing home and assisted living neglect lawyers of the Law Offices of Ben Yeroushalmi in Los Angeles are dedicated to elder abuse and neglect cases and can be contacted online or at (310) 623-1926.