Denver Colorado Medical Negligence Attorneys

In March of 2007, the Boston Globe carried a story on Jean Dwyer, a 77-year old victim of nursing home negligence. According to the Globe, Mrs. Dwyer, suffering from dementia, lay in her Norwell, Massachusetts nursing home bed in discomfort and distress. Due to her condition, she was unable to explain or identify the cause of her pain. Mrs. Dwyer's daughter visited her daily for a few weeks, worried that her mother's condition was worsening. Nursing home staff claimed her mother's organs were shutting down and that she was in the process of dying.

Eventually, the nursing home sent Mrs. Dwyer to the local hospital's wound clinic. In October, her daughter was informed that the cause of her mother's suffering was a large wound on her ankle: a gaping wound had left her bone and ligaments exposed. As result, a serious infection had attacked her body, spreading from the wound into her bloodstream. In order to save her life, her right leg had to be amputated. Mrs. Dwyer is now living comfortably in a new nursing home, able to use a wheelchair.

Demanding Justice, Holding Long-term Care Facilities Accountable

Due to poor care and a lack of sufficient enforcement oversight, negligence in long-term care facilities is a nation-wide problem. Cases like Mrs. Dwyer's usually end up in civil litigation since victims of nursing home negligence often face expensive medical treatment due to bed sores, dehydration, malnutrition, infections, broken bones, and contracted muscles.

Why Negligence is a Problem

Perhaps the most common cause of negligent care in long-term care facilities is a lack of well-trained, properly supervised nursing staff. Due to low wages and high turnover, most nursing homes have difficulty retaining qualified staff. A federal study conducted in 2001 found that more than half of all nursing homes are inadequately staffed to avoid injury or harm to residents. The study also found that in over 90 percent of all nursing homes not enough nurses or nursing assistants are available to ensure good care is provided. In fact, 90 percent of the care given in nursing homes is provided by underpaid, poorly supervised and inadequately trained nurse aides struggling to make do with limited resources.

Turnover Rates - Difficulties Associated with Keeping Qualified Nurses

Data collected for 2002 indicate the turnover rate for nursing assistants was greater than 80 percent in 19 states while exceeding 100 percent in 10 states. A study conducted in 2005 analyzing nursing home staffing data revealed the percentage of care provided by a registered nurse in long-term care facilities is actually declining - despite increased Medicare funding targeted for nursing. Additionally, the US Department of Health and Human Services' Office of Inspector General discovered only 38 percent of all medical directors actually visit their nursing homes more than once a week.

Negligence and Poor Care - A Problem of Epidemic Proportions?

In 2004, a long-term care ombudsmen investigated approximately 20,000 complaints involving nursing homes. The complaints involved abuse, exploitation, and gross neglect. In addition to these problems, 87,000 complaints were also investigated in relation to resident care. In the same year, 26.2 percent of all nursing homes nationwide were cited by various regulatory agencies for health care violations. Perhaps not surprisingly, most of the facilities where neglect and abuse was reported had a history of poor performance - in many cases involving problems known to state regulators for years.

Equally troubling is the fact that in 2003, the US Government Accountability Office's chief healthcare investigator testified before the Senate Finance Committee that there are more than 300,000 elderly and disabled patients living in sub-standard, chronically negligent nursing homes. He told Committee members these residents were put at risk “when physicians’ orders were ignored, when residents were allowed to deteriorate due to malnutrition or dehydration without any intervention, or because bedsores went undiagnosed or . . . were not treated properly.”

Government Accountability

Although there is little doubt regarding the widespread nature of abuse and neglect in long-term health care facilities, problems at state regulatory agencies also contribute to the problem. Many state regulatory agencies also suffer from high turnover rates and understaffing. A report issued by the Government Accountability Office (GAO) and the Office of Inspector General found state survey agencies often neglect to formally cite facilities where abuse and serious injuries occur. When facilities are cited and penalized, the fines involved almost never reflect the degree and seriousness of the violations themselves.

Turning to the Courts

Currently, 2.5 million elderly Americans and disabled adults live in long-term health care facilities. Many of these people require around-the-clock care and assistance. When abuse and neglect occurs, victims and their families often have no other choice but to turn to the civil court system for some measure of justice.

Unlike a criminal trial where those responsible for violating the law face heavy fines and prison, civil suits only provide financial compensation for victims of others' negligence or harm. Typically, a civil suit involves people in the workplace seeking economic damages for incurred medical costs and lost wages due to an injury. Damages that are not directly related to quantifiable economic harm involve the pain and suffering of a victim and are only awarded in certain kinds of cases. Since most elderly and disabled residents of long-term care facilities are not wage earners, the only damage the court or a jury can award them are damages for pain and suffering.

In fact, according to a Harvard University researcher testifying before the Senate Special Committee on Aging in 2004, 80 percent of all compensation in nursing home related lawsuits is for non-economic damages. According to the researcher, any attempt to place a cap on non-economic damages would prevent injured residents and their families from holding negligent nursing homes accountable for their actions. To date, federal law includes caps for non-economic damages in proposed changes to tort law as it applies to medical malpractice cases. In fact, some states have already enacted tort law reform, placing caps on the amount of non-economic damages that can be recovered.

According to the proposed changes, non-economic damages would be limited to $250,000. in law suits involving nursing homes and assisted living facilities. If enacted, the cost of bringing a lawsuit against a negligent long-term care provider would be cost prohibitive for victims that cannot claim economic damages. Additionally, caps may provide care facilities with an incentive to avoid expending costly, scarce resources in the care of a resident when the cost of doing so far exceeds the damages they can be held liable for.

Given this, it's interesting to note that under current tort law, a jury has no limit in on the award against a corporate executive in a civil suit brought against an employer involving claims of loss income. In this way, limiting non-economic damages devalues human life while putting the most vulnerable among us at risk for continued abuse and neglect.

If caps are adopted, the net effect would be to release long-term care facilities from exercising increased due diligence to ensure the safety and care of their patients. Large monetary awards send a message to others in the industry - it lets other nursing homes know they are not immune from being held financially liable in neglect cases involving huge sums of money.

Contact Chalat Hatten & Koupal PC Today

If you have questions about nursing home neglect and the legal options available to family members of an abused or neglected resident, contact Chalat Hatten & Koupal PC today and schedule a free consultation to discuss your case.