Legal Review & Commentary

Woman suffers bruising on arms after alleged abuse by nursing home director — $825,000 settlement

By Jon T. Gatto, Esq., Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney, Tampa, FL

News: An elderly woman with Alzheimer's disease suffered severe bruising on her arms while staying at a residential care facility. Although the facility's director initially told the woman's daughter that the bruises were caused when the director had to restrain the woman from attacking her, the daughter subsequently learned that the bruises resulted when the director became angry at the resident and grabbed and twisted her arms while dragging her across the floor. The daughter filed complaints with adult protective services and the police, and she also filed a lawsuit against the facility, its director, and its administrator. The parties settled the case for $825,000 before trial.

Background: A 91-year-old retired schoolteacher suffering from Alzheimer's disease stayed at a residential care facility for two weeks while her caretaker daughter went on an out-of-state trip. The daughter settled on this particular facility after contacting the Alzheimer's Association and making personal visits to several residential care facilities in the area. This facility held itself out as specializing in elders suffering from Alzheimer's disease.

After the first week, the daughter called the facility to speak to her mother, and the facility told the daughter that her mother could not come to the phone but that she was fine. The daughter called again the next day and spoke to her mother. The mother was crying during the conversation, but because she could not express what was wrong, the daughter just assumed that her mother simply missed her.

When the daughter came to the facility the next week to pick up her mother, the facility's director told her that there had been an incident with her mother. The director claimed that the mother had struck the director while the director was assisting a male resident, who had become combative. The mother had apparently believed that the male resident was her father and that the director was hurting the man. In self-defense, the director restrained the mother, which caused bruising to both of the mother's arms. The director told the mother that she had prepared and filed an incident report with the appropriate authorities.

The daughter accepted this version of the incident and brought her mother home. The mother subsequently began complaining of back pain, was despondent and distraught, and was progressively unable to walk, make her bed, or accomplish on her own the other activities of daily living that she had been able to do prior to her stay at the facility. Within a few days of bringing her mother home, the daughter learned that the director's version of the incident at the nursing home was not accurate. Three former employees of the facility (who had witnessed the incident while employed by the facility) told the daughter that the director had become angry with the mother for constantly entering her office and that the director had grabbed and twisted the mother's arms and dragged her across the floor into the dining area. The director then apparently raised her hand to strike the mother in the face, but she realized that several witnesses were watching the events. She subsequently dragged the mother into the hallway and shoved her into a chair, where she yelled at her to stay put. The former employees told the daughter that even though they reported the incident to an administrator, the complaint was not subsequently reported to any regulatory or law enforcement agency. The daughter also learned that the mother was not provided with any assistance for her injuries from this physical and mental abuse, humiliation, and intimidation.

Alarmed by the true facts underlying the incident, the daughter took her mother for an examination and an MRI, which revealed a spinal compression fracture at the T12 level of very recent origin. The daughter then contacted the state adult protective services agency, which prompted the California Department of Social Services to investigate the facility. It determined that the facility had purported to conduct an internal investigation of the incident but had failed to report these events to any regulatory or law enforcement agency. The daughter also contacted the police, which investigated the matter and brought charges against the director for felony elder abuse. The director ultimately pled no contest to the charges.

The daughter filed suit on behalf of her mother against the nursing home, the director, and the administrators alleging elder abuse. She alleged that the defendants ratified the abuse by failing to report the abuse to the appropriate authorities, assisting in covering up the incident, failing to obtain medical attention for the injuries, lying to the daughter about the incident and the filing of a report with authorities, purporting to conduct an internal investigation of the matter, and allowing the director to continue working at the facility with the full knowledge that this incident had occurred. The plaintiff alleged that she was entitled to a presumption of elder abuse because of the violations of the defendant's statutory and regulatory duties. She sought damages for the spine fracture, ongoing back pain, severe and ongoing cognitive decline, and severe psychological damage manifesting in depression, sleeplessness, fear of strangers, and loss of interest in life.

The nursing home denied any assault and maintained that the mother had become out of control and was resistant to the director's attempts to get her under control. The director specifically claimed that it was the mother who assaulted and battered the director even though the director was making reasonable efforts to restrain the mother. The facility claimed that the former employees were disgruntled and were motivated to claim that an assault occurred because of personal reasons. The defendants also challenged the plaintiff's alleged damages, claiming: a) that the spine fracture was not caused by the incident and that it had fully healed anyway; and b) that any cognitive decline or other physical and psychological impairment was the result of the natural progression of the mother's Alzheimer's disease and not any specific incident.

As the trial neared, the parties prepared for a battle of the experts. The plaintiff retained expert witnesses in the fields of nursing, life care planning, orthopedic surgery, psychology, and geriatrics. The defendant's experts included a life care planner, an orthopedic surgeon, a neurosurgeon, a geriatrician, a psychiatrist, a psychologist, and a nursing expert. Recognizing the negative impact the director's felony no contest plea would have on the trial, the parties reached an $825,000 settlement.

What this means to you: "This case is both a tragedy and an embarrassment to the nursing profession and the long-term care industry," says Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, consultant/principal of The Kicklighter Group in Tamarac, FL, which focuses on health care risk management consulting services, and past president of the American Society for Healthcare Risk Management. "This particular resident had been living with her daughter who entrusted her into the care, control, and custody of this facility and staff to care for her on a temporary/respite basis," she says. "What happened to her and the cover-up that followed is unacceptable."

The population of the United States is growing older as each day passes. As that occurs, the number of people living with Alzheimer's disease or dementia increases. Many families are caring for their family members who have these conditions in their homes. People who have no families, or who have families who cannot care for them in their homes, become residents in nursing homes or other facilities that offer care for these conditions. Nursing homes that care for residents who have Alzheimer's disease, dementia, or other memory/mental impairments are usually equipped with units specifically designed and staffed with personnel who have been trained to care for these residents. Usually these units are locked for protection, as individuals with these conditions are prone to wandering and confusion. Patients exhibiting less severe symptoms of Alzheimer's disease and dementia may or may not be assigned to a locked unit. Exercise and ambulation are encouraged in the nursing home environment to support continued independence.

In the nursing home environment, residents sometimes wander in and out of offices and other areas. Steps should be taken to prevent residents and visitors from having unauthorized access to certain areas of the campus, such as the maintenance area and laundry and kitchen areas. However, Kicklighter indicates that should a resident wander into an office and thereby disrupt an employee's work, there are appropriate ways to redirect the resident, such as by calling a staff member from the residents' unit to retrieve the resident. That step was not done in this situation.

When one encounters a situation such as this, where the facility director or any other staff member acts out in such a violent fashion and inflicts such extensive injuries, it begs the question whether there are other influencing factors. Kicklighter notes that programs focusing on recognition of stress, the effects of stress, and appropriate management of stress are rarely supported in the health care setting. However, as patients and residents in acute care and long-term care facilities get sicker and as staffing shortages grow, staff members are often expected to do more with fewer resources, which leads to increased stress.

"One possible outcome of having overstressed personnel is the potential for errors or loss of control, as was exhibited in this situation," says Kicklighter. Risk management should work with management and the human resources department to develop and support stress management programs. Recognition of the signs and symptoms of stress is the first step in managing it. In particular, personnel who are assigned to work in Alzheimer's locked units, or with patients with Alzheimer's disease or dementia, should be educated as to how to use diversion tactics to redirect agitated residents or wanderers.

Suspected or observed abuse, neglect, or extortion of the elderly or mentally impaired (and children) should be immediately reported to the appropriate state and federal authorities and also to the police. In this case, the staff members who observed the physical abuse of this resident did not make the required reports. Reporting suspected, observed, or confirmed abuse, neglect, or extortion is required under federal law and under the law of most states.

In some states, the consequences for failing to report elder abuse are severe. For example, in a recent Missouri case, the president of a business that operated nursing homes was sentenced to jail for failing to report nursing home abuse. The president of the business received the maximum sentence of one year in prison and a $1,000 fine for a misdemeanor charge of failing to report elder abuse. In that instance, a 78-year-old nursing home patient was beaten by a nurse's aide and died from his injuries. The nursing aide pleaded no contest to elderly abuse and is serving a 15-year prison term. A nurse's assistant testified that she and a co-worker told two supervisors that they suspected that an aide had beaten the patient. A nursing home administrator suggested to the president of the corporation that the incident should be reported to the state. The president responded that it was not an incident of abuse and should not be reported.

The jury convicted the president of the corporation for failing to report elder abuse in violation of Missouri law. The judge who heard the criminal case against the president of the corporation said, "I've had rape cases. I've had death penalty cases. This was the maddest, angriest jury I've ever seen." An appellate court ultimately upheld the sentence imposed by the Missouri trial court. The incarceration of the nursing home president serves to underscore the importance of complying with state and federal law regarding reporting of elderly abuse.

It is of supreme importance that nursing homes and long-term care facilities establish an environment in which employees feel comfortable advising their superiors to report instances of elderly abuse. In this Missouri case, the president of the corporation attempted to cover up a situation that was required to be reported to the state by instructing an employee not to report a clear incident of abuse. The president of the corporation paid the price with a year in jail.

Any nursing home or long-term care facility should have a written policy on how to deal with incidents of elderly abuse, including the reporting of elderly abuse in full compliance with state and federal law. All employees who may be involved in reporting such incidents should be thoroughly trained. It should also be made clear to every employee, through a written policy, that there will never be any action against someone's employment for their good faith efforts to report elderly abuse in compliance with state and federal law. Only by fostering an environment where every employee feels comfortable acting in compliance with the law in cases of elderly abuse can a nursing home or long-term care facility ensure that such compliance will occur.

Additionally, says Kicklighter, whenever an incident occurs that involves a resident, staff members must promptly notify the next of kin or legally responsible party and document the notification. In this case, this was not done promptly and, when it was done, the true sequence of events was not conveyed.

The interaction between the resident and the facility director in this case appeared to be criminal, which calls into question whether the police should be contacted. In this case, it does not appear that the facility even considered contacting the police. Additionally, the facility should have immediately removed and suspended the facility director from duty until a full internal investigation, as well as the investigation from the state adult protection agency, had been completed. "That should be standard practice, and it is unacceptable that it was not done in this case," says Kicklighter.

This incident underscores the importance of the risk manager of a facility establishing an open and trusting relationship with staff, so that the risk manager is the first person staff members will contact when an incident occurs. The risk manager can immediately take control of the situation and protect the resident and minimize the consequences for the facility in full compliance with state and federal law. Had the risk manager been involved early on in this case, it is possible the proper reports would have been made with the correct information. If the risk manager had been advised of the situation and the subsequent cover-up, the risk manager could have dealt with the reporting and other issues that should have been addressed.

One of the roles of the risk manager is to educate staff and administration on their responsibilities and roles in terms of the protection of residents. Such inservice offerings should include responsibilities for reporting; types of incidents to report; to whom to report; and timeliness for reporting suspected or confirmed abuse, neglect, or extortion. In most states, the individual has a legal duty to make the report. In most states, such reports are confidential.

Because nursing home administrators also are licensed, it is a possibility that the administrator in this case should have been reported to the board of nursing home administrators, as the administrator was apparently part of the cover-up, having been advised of the incident by staff members.

The worldwide patient safety initiative encourages transparency and disclosure, says Kicklighter. The patient safety focus is not restricted to the acute care setting; rather, it applies to the entire continuum of health care delivery, including the long-term care setting. "This is a sad example of one organization that didn't get the message it would seem," laments Kicklighter.

What this should mean to a risk manager, and to senior management of any health care facility or organization, is that honesty is the best policy and that cover-ups rarely stay covered. In this case, staff members were aware of the actual events and ultimately made the daughter aware of what actually happened. "Whistle-blowers, so to speak, are everywhere," notes Kicklighter. If the right questions are asked, the information that facilities are trying to cover-up may, and often do, come to light, which causes the situation to appear even worse than it was due to the cover-up. The way to avoid problems arising from cover-ups is to embrace full, truthful, and prompt disclosure. Risk management should play a significant role in supporting this practice and policy.

Reference

  • Los Angeles County (CA) Superior Court, Case No. VC044053.