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GENERAL CONCEPTS
 

General Concepts of Injury Law

NURSING HOME NEGLIGENCE
In 1965 Medicare and Medicaid came into existence and along with it came federal nursing home regulation. Nursing homes that qualify and voluntarily elect Medicare and Medicaid to their facility must follow a set of guidelines put forth by federal standards.

The Health Care Finance Administration that is part of the United States Department of Health and Human Services enforces these nursing home regulations. Congress authorized the first set of standards that were to be met by nursing facilities in 1967 and created classifications for the Skilled Nursing Facilities and Intermediate Care Facilities. Both in 1980 and again in 1987 these standards were updated with the most current standards imposed under the Omnibus Budget Reconciliation Act of 1987.

Nursing home negligence can present itself in a many ways, including physical abuse, emotional abuse, or neglect. With the growing demographic of Americans needing nursing home care and physical assistance, the industry is booming and incidents of nursing home negligence are increasing dramatically. For some of the more unscrupulous mega companies which run chains of thousands of nursing homes across the country, nursing homes are no more than profit centers and their business decisions are dictated by bottom line money issues.

As a consumer of nursing home services and as family members who have loved ones in these situations, it is very important to be proactive and take into consideration all of the information available to make informed decisions about the care and treatment your loved one is receiving. Signs and categories of things to look for in the way of negligence and abuse are as follows:

1. Physical Abuse
Open wounds, cuts, bruises, welts or discoloration;
Caretaker cannot adequately explain condition;
Elder's sudden change in behavior;
Loss of weight; and/or
Burns caused by cigarettes, caustics, acids.
2. Emotional Abuse
Emotionally upset or agitated;
Extremely withdrawn & non-communicative; and/or
Unusual behavior (sucking, biting, rocking).
3. Neglect
Dehydration, malnutrition, pressure sores;
Poor personal hygiene;
Begs for food;
Unsanitary and unclean conditions; and/or
Dirt, soiled bed, fecal or urine odor.
Understanding the Process

If you or a loved one suspect that there is or has been mistreatment as outlined above and that your loved one has been a victim of nursing home negligence, please contact us or a qualified attorney to evaluate your potential claim. Our office specializes in handling nursing home cases and other medical malpractice claims, and we can help you quickly evaluate your case.

Today's nursing facilities (often referred to as nursing homes, extended care services, or health care centers) serve those who expect to recover fully as well as those in need of extended long-term care services. The goal of care in a nursing facility is supposed to be to help individuals meet their daily physical, social, medical, and psychological needs and to return home whenever possible.

Generally speaking, there are four types of services offered by nursing facilities:
1. Medical Care
Residents (not called patients in nursing homes) in nursing facilities are under the care of physicians, who are supposed to visit regularly and are legally responsible for the residents' overall plan of care. Physicians certify the need for nursing care. These care home physicians write all medical orders and are required to participate in the restorative and rehabilitation process. These physicians are required to physically examine each resident on a regular basis, are responsible for all medication orders and patient care, and are supposed to be on call to handle emergencies.
2. Nursing and Rehabilitative Care
All nursing facilities are required by law to be staffed by a registered or licensed practical nurse. Nursing services include assessment, treatments, injections, coordination of care, and medication administration. Rehabilitation services, such as occupational therapy (OT) and physical therapy (PT) are supposed to be available. Nursing facilities are supposed to include special dieticians and dietary services as well as dental care and maintenance.
3. Personal Care
Personal care is supposed to be provided to residents who need help with various activities such as personal hygiene, grooming, toileting, dressing, etc. Most care facilities use certified nurse assistants (CNAs) to provide these services because they are cheaper to hire than other types of attendant care workers.
4. Residential Care
Nursing facilities are supposed to be safe and secure environments. Residential care services include this type of general supervision and obligation.
Unfortunately, with nursing facilities being overpopulated and care providers understaffed, and facilities being driven by a profit motive, many times a breakdown in any of these categories of care occurs, oftentimes with catastrophic results. If you or your loved one has experienced abuse, contact us today so we can assist in evaluating your claim.

How can I avoid problems before nursing abuse occurs?
1. Check state inspection and survey reports.
Under Kansas law, the Kansas Department of Health and Environment (KDHE) inspects every facility annually. The survey results are available at the facility and you may review the report of the facility's performance. A staff representative can answer your questions and provide additional information about this complex document, or you can contact our office to discuss survey results. Oftentimes survey reports establish a pattern of abuse or neglect by a particular facility, or will indicate if a facility is routinely in compliance.

2. Ask questions and be proactive.
If you are willing to ask hard questions, visit the facility and be proactive, it can make a difference. Ask and expect answers to these questions:
1. Is the home and the current administrator licensed?
2. Does the home conduct background checks on all staff?
3. Does the home have special services units?
4. Is there nursing home abuse prevention training?


Medical professionals must obtain your informed consent prior to rendering medical treatment.
"Informed consent" is an individual's agreement to allow medical treatment to be rendered based upon full disclosure of all of the facts necessary to make an intelligent decision. In order to provide informed consent, you must be able to understand what the proposed medical treatment entails, what procedures will be used, whether drugs or surgery will be utilized, what the various alternatives are, as well as the potential risks and side effects. Whether or not the consent was “informed consent” is based on an analysis of all available information -- you must be able to understand the information and then have the mental ability to weigh and consider this information as part of your decision-making process.

I signed the informed consent form before surgery. Did I give up my rights when I signed?
No. While the form may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not let the doctor or hospital off the hook if they fail to perform according to acceptable levels of care.

Also, there are situations where the consent is invalid, as for example, if you were not informed of the risks involved with the procedure, were misled about the surgical procedures to be done, or there was incompetence in the performance of the surgery and consequent injury.

Is misdiagnosis malpractice?
No, not necessarily. Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, recognize the symptoms of the illness, or performs other diagnostic acts or omissions that a reasonably careful doctor in a similar situation would not have done. And yet, there is no basis for a malpractice claim if there is no injury, loss, or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before. The alleged act of medical malpractice must cause actual damages, injury and loss.

What if I am just not satisfied with the results of my surgery?
Medical malpractice does not occur every time medical treatment is not successful. Not every medical treatment or procedure comes in with a guarantee that the doctor will successfully produce the results you want. A doctor is, however, required to have the necessary knowledge and experience to perform the surgery in question. And again, if the outcome of your surgery is a bad result compared to the outcome you would get from a reasonably careful doctor or surgeon in a similar situation, then your bad surgical result may in fact be medical malpractice. Consult with an attorney who can help you develop the medical evidence necessary to prove your case.

Can hospitals turn away patients?
Generally speaking, yes, but not when there is a need for emergency medical treatment or if a patient presents in active labor.

With non-emergency treatment, it can depend on whether the hospital is a public or private one. Private hospitals are not required to provide non-emergency medical treatment to people who cannot pay.

Hospitals generally cannot stop treating a patient once he or she is admitted. Similarly, treatment cannot be discontinued by a hospital for nonpayment without sufficient notice to the patient.

If you believe you have suffered serious injury as a result of the negligence or medical mistakes of any doctor, hospital or medical provider, please contact us to help you evaluate and prepare your case.