The Verdict: Understaffing in Nursing Homes

From The Carlson Law Firm welcome to season 1 of The Verdict a podcast, about the laws and processes that shape the real courtroom outcomes of personal injury cases. I’m your host, Kazia Conway. Understaffing has become a considerable problem for American nursing homes, it can lead to serious negligence and serious negligence leads to serious injuries and sometimes death. Texas has the highest percentage of one and two-star nursing homes in the country. Additionally, nursing homes in the state have consistently ranked the lowest amongst the 50 states and the District of Columbia at providing care for nursing home residents. Many of Texas’ nursing home abuse and neglect issues stem from its problem with understaffing. To go into detail, this week we are joined by one of the leading nursing home litigation attorneys The Carlson Law Firm’s very own JT Borah. JT has testified before the Texas house on the condition of Texas nursing homes and he has also successfully represented hundreds of clients and their families in nursing home abuse and neglect cases.

K: So JT why don’t we start this off by you telling us what difference is between nursing home abuse and nursing home neglect?

J: The difference between abuse and neglect has to do with the intent of the person involved in it. The abuse I would say is more intentional than neglect. For instance, abuse would be things such as physical assault, verbal assault, sexual assaults, things of that nature. Where on the other hand, neglect is not necessarily intended and so what you’ll have is or situations in which the staff not having enough time to do all the tasks that they are asked to do during their shift. And what ends up happening is a certain task goes undone not intentionally. The staff really want to get it done because most of these staff members just love these old people that they work with, and they feel bad about it. But the thing is that they put in eight hours and at the end of their shift they realized oh wait a second I wasn’t able to do this, that, and this for this particular resident and so the resident ends up being neglected. Again not because of any intention on the part of the staff at all.

K: How serious is neglect as a problem for nursing homes, not just in Texas, but all over the country?

J: Neglect is a much more serious issue, in my opinion, than abuse is. I believe that abuse does get more headlines but neglect has more victims because what ends up happening because the staff members are unable to complete their tasks they literally get less job satisfaction. And they end up having to do so many things in such a short period of time they just get burned out. And so it’s not just the residents who are victims of neglect, it’s also the staff members themselves because they are, the neglect is actually forced upon them because there is just not enough staff members in order to accomplish all the tasks. And what we’re finding is that pretty every one of our cases is what we refer to as, every case is, an understaffing case and understaffing leads to neglect.

K: How big of an issue has understaffing become?

J: I am friends with nursing home attorneys all around the country and they’re all saying the same thing. In every single one of their cases too. And so we’re talkin’ every state with almost every nursing home.

K: So JT tell us, what are some of the more common nursing home neglect injuries that you see?

J: The most common ones that we will see is the development of a pressure injury or what is commonly referred to as a bedsore or falls and the reason those things happen is, again with not enough staff to accomplish everything that they are supposed to do, these are the injuries that you would expect to increase. And they in fact do increase.

K: Why do you think that occurs?

J: For instance, on the pressure injury/bedsore scenario, the recommendation is that the person who has limited mobility and is basically bound to their bed, needs to be repositioned at least every two hours, and when that’s not done their skin is susceptible to break down and because of the pressure. With falls, what happens is you will have a person who needs help going to the restroom and so they’ll push their call button and there won’t be a timely response. And because of the urge to go and not want to lay in their own urine and feces, they decide to get up and attempt to get to the bathroom by themselves and they ended up falling. When they fall they either break a bone, like a leg or a hip, or they hit their head and they suffer a brain bleed. And what’s bad about that especially with nursing home residents is that the majority of them are on blood thinners. And it just makes it much more easy for them to have a brain bleed. And what nursing homes fail to do at that time is to take them immediately to the hospital to have an MRI or a CAT scan. Instead, what they do is, they run an x-ray of their head to see if they have any fractures. And what they can’t see with an x-ray is blood entering the brain and causing what’s called a subdural hematoma which then quickly leads to their death. One of the interesting cases we’ve had recently was a lady who had survived breast cancer three different times, and she was told a fourth time it had recurred and she informed her family and her doctor that she was too tired to fight it again and she just wanted to pass away peacefully. And so they decided to put her in a nursing home on hospice. A couple of days after she was there, the nursing home called the family and informed them that she had fallen the previous night. The family members asked if everything, she, was ok if any broken bones anything like that. They said no, no she’s fine, she’s in her bed sleeping comfortably. And they said ok. Later that day several family members went there to visit to see how their mother was doing but the nursing home had positioned her mom in such a way so she was facing the wall and they couldn’t see her face or anything. And she again was sleeping, and so they didn’t turn her over to examine her to see if she had any bruises. So they let her alone and they left. The next day they were informed that their mother passed that previous night. And so they informed the nursing home please go ahead send her, they had made arrangements to have her sent to the morgue to have her cremated. When the hospice nurse showed up later that day she asked were that resident was and they said that she had passed the previous night. The hospice nurse pulls out her cell phone, calls the family and says “you need to have an autopsy because I do not believe that your mother died as a result of the cancer.” And they asked what she thought she died of, and she goes, “I’m not sure but I don’t think it was the cancer.” And they said ok. Fortunately, this was a family that had means, and they could afford an autopsy. Most of our clients can’t. So, they stopped the cremation process from starting, sent her out to the medical examiner and the results of the autopsy was that she had died as a result of blunt force trauma to the head which resulted from a fall.

K: What really happened to the resident when she fell was far more serious than what the nursing home had originally told the family.

J: A couple of nights into her stay at the facility the resident needed to use the restroom so she had pushed the call light, and as happens in understaffed facilities, no one responded in a timely fashion and so in her desire not to soil herself she attempted to walk across her room into the bathroom. And in that process, she fell and she hit her head.

K: Stories like this are tragic, but unfortunately they aren’t unique. Injuries from falls are just one of the many ways understaffing affects U.S. nursing home residents. Few people recognized that as many 95% of American nursing homes are understaffed. When nursing home injuries occur many families are left confused and angry.

J: As you can imagine, the family was furious over that. We, of course, filed the lawsuit and were able to get a settlement that, although because of the caps in Texas, really didn’t serve as justice in the case but it was at some level holding the nursing home accountable for really egregious activity on their part.

K: Why do nursing homes fail to take residents to the hospital if they have experienced a fall, or something as equally damaging?

J: There could be a couple of reasons, one is they honestly don’t understand the problem, the staff doesn’t understand what the problem is. What they do is they’ll see oh they hit their head they might have a bruise but their only concern is whether there is a fracture. And I guess the staff has not been informed, when I say the staff I’m talking about the CNAs. Obviously, the RNs know this LVNs should know this. The staff will just maybe not even recommend that an x-ray be done they just see there is no torn skin, they are not complaining of any pain in their legs or anywhere, they have a headache. But they haven’t been trained enough to know that, you know, Mr. Jones is on blood thinners and this is a critical thing that needs to be done in case there is a fall. So I think there is an educational component to it that lacking. Another thing, that is another possibility, is that you have nursing homes who are concerned about having the hospital that they would take these people to, do what I refer to as grader their paper. And so you end up with a person showing up there, at the hospital, and they notice other things that are wrong with this person. Which might be malnutrition, could be dehydration, it could be the presence of pressure injuries or bedsores. That the nursing home just doesn’t want, like I said, the hospital to see it and grade their paper.

K: How does a family go from a phone call that their loved one has been injured to coming to you?

J: So, what would happen is, the person, we’re talking about a fall here, you’d have a fall the nursing home hopefully would inform the contact, the main contact, and say “we just want to let you know your [mother/ father] fell.” Then what they should do at that point is not ask, “well how are they doing?” What they should do at that point is to go down to the nursing home to see how they are doing. And then if the relative hit their head they need to insist they be taken to the hospital and have a brain scan or CT scan of the brain or an MRI of the brain. If they’ve developed a subdural hematoma and there is nothing that can be done about it then at that point they are moved into hospice and they will usually pass within a week or so, or less. If they’ve suffered a broken bone as a result of the fall there are times that, if it is a displaced fracture, then they need to have surgery. However, a lot of old people will not survive the surgery, and so they will tell them “don’t do the surgery.” But, they will often time give them the option of having surgery but with the caveat that “please understand that as soon as we give them anesthesia it’s very possible that their heart could stop.” And so, a lot of times people will decide not to have the surgery and other people decide to have the surgery. And it’s not a bad decision, either way, it just depends on the situation. But it’s heartbreaking because in both situations in normally death is not that far away. And so, once the death happens they need to give me a call.

K: And so, at that point, your clients can file a wrongful death claim.

J: Well at that point what will happen is, we will get the records. And so one, we will have to look through the records to see what we can document and what we can prove from the records. And if we believe that the records are such that we can prove negligence on the part of the nursing home, then yes we would be recommending to them that we file a lawsuit.

K: You testified for the Texas legislature in mid-November about how Texas nursing homes are doing, and one of the things you touched on was staffing to acuity. Can you say a little bit more about what that looks like and what should families who are touring nursing homes look for?

J: So, staffing to acuity is juxtaposed to staffing to census. So we need to define a couple terms here. Census is basically what i refer to as “butts in the bed,” its how many people are here in the building, how many residents are in the building. And so you may have a facility that has say 110 beds and they are at 72% capacity so they’ll have 80 people in there. And you can have some type of calculation, when I say you I mean the facility and the chain, might have a type of calculation where they go, for 80 people during this particular shift during the day we need x number of CNAs, x number of LVNs, x number of RNs. Evenings we need less because they’re sleeping. But still they’ll have the calculation x number of CNAs, x number of LVNs, x number of RNs for that shift. But it’s just based on just the pure number of people in there. What that doesn’t take into account is acuity, which is the other term we need to define here. And what acuity basically means is the level of care a particular resident needs. And so you might have a resident in the facility who needs very little care but the reason they’re there is because they memory issues and they can’t be left at home alone cause they could start a fire, they could walk away and not know where they are, they could get in their car and drive away and not know where they’re going. And so they just can’t be alone. However, if you looked at ‘em they’re walking around, they’re talking, they can bathe themselves, they can dress themselves, they can do all the hygiene stuff they need themselves. That person’s acuity level is pretty low. Now, on the other hand, you might have a person who is on a ventilator who needs constant care. They may have a catheter that needs constant care. They need to be repositioned at least every two hours. And so that’s going to require more people than the person who just has dementia issues. And so every facility has a different acuity mix and different facilities will strive for higher acuities and others might strive for lower acuities. And so that’s why when I was testifying before the Texas legislature I say, “please do not set an arbitrary number as to what the staffing level should be because you might have high acuity facilities who will point to that number and say hey we staff at that level and it’s just not enough to meet the needs of their residents.”

K: What are some of the difficulties you face when trying to prove abuse or neglect?

J: The difficulties that I face have to do with the clients not knowing what actually happened. What you’ll have is families that are really involved in their families, in relatives, care at the facility. They’re up there at least three times a week, some of our clients actually show up everyday. And some of them, you know, spouses will spend all day up there. But they, of course, they aren’t there 24 hours. And so when a negative event, terminology that is used in the industry, when a negative outcome happen the family is just sort of bewildered as to how in the world that could have happened. And so they don’t know, they haven’t seen any records, they get the records, they don’t know how to read them, they don’t know what they’re looking for. And so then we’ll go through and look at the records and what we find sometimes, and what we’ve heard from some people in the industry, cause that whenever a negative outcome happens for a resident there are things they refer to as charting parties. The way it has been described to us it that they will go into a conference room,and they will have about four or five different people there, they’ll have about 3-4 different color pens, and they will just start charting and showing things that they actually did things that didn’t happen. Now the thing is that there are so many different departments in nursing homes, that to keep that all straight is difficult because you’ve got therapy department, you’ve got the nurses notes, you got doctor’s orders, you got dietary, you got so many departments that’s the social aspects. They all have different reports, and so trying to keep all those straight, is very difficult. It can be done, I have no doubt, that if they are organized enough that these charting parties can actually write away any negligence in their cases. But the things is that it’s still is a very difficult thing for them to do and charting parties doesn’t happen after every negative outcome. But it is something that we have to deal with, with the records being altered. Every time I get a set of records I presume that there is false charting in it and that there are things that are missing. I recently had a case where I got the records from the nursing homes lawyer, which I thought weird cause, normally I just get it straight from the nursing home but this time it came from the lawyer. But normally what I do is I ask them to provide us with an affidavit that the records are complete and reflect everything that went on at the facility. Basically, the care that my client received between x date and y date. And so we get these records and there was no affidavit with them. So I emailed the attorney and I said hey, maybe this is an oversight here’s another copy of it, can you have your records custodians sign this and have it notarized. And so I just got an email this morning actually, on that case, and he informed me, he goes “well actually there are some things that we have withheld from the document, from your client’s clinical record, and it’s because they’re confidential,” or something like that. And I’m probably saying I’m gonna follow up on that, but I thought it was pretty interesting that they were removing stuff. They’ve admitted to me now that they have removed stuff from my client’s clinical record.

K: and in email.

J: in an email.

K: in writing

J: Yeah. I mean it was done, it was very nice, it was very civil about it. But it will be interesting to see how that all unfolds. That’s the thing, the biggest problem is record keeping.

K: So what are some of the legal challenges with holding nursing homes accountable?

J:  The biggest legal challenge in Texas has to do with what is referred to as a cap, which limits the amount of money that a family can recover as a result of the negligence or abuse of their relative. And the reason that that’s a problem is that these cases cost a lot of money to prove. We have to higher experts, we are required to higher experts by the law to prove our case. The law also requires that this be a side job for our experts because the statute says they have to be practicing medicine. And so this can’t be their main source of income, they have to be working with older people, they have to be geriatric practice, whatever practice it is this is just on the side. And so it’s hard to find experts to do that. In addition to that, a lot of doctors don’t like to grade the paper of other doctors and give them a bad mark, and so it’s difficult to find experts, but we have good experts who do a great job. But that is an issue, that is an issue for a lot of people. Another thing is that nursing homes are organized, from a business perspective, in such a way as to not have any assets. And when you take that into consideration with another fact that in Texas nursing homes are not required to have insurance, it makes it a less attractive target for a lawsuit. And so by doing that it discourages attorneys from taking these cases. And it’s a big problem, we were recently informed that a major chain here in Texas filed for bankruptcy. And what that ended up doing is I have ten cases now with that chain that had no insurance that is in bankruptcy now. And I’ve contacted the bankruptcy lawyer to give me some advice on this, that’s not my area of practice, and he has basically informed me that the likely outcome of our ten cases is that they will basically have to be dismissed. With our client recovering nothing, and in those cases we have incurred I think it was about $95,000 in expenses that we will now have to eat. And so this is discouraging for attorneys to take these types of cases. And so those are, as far as legal issues and really corporate formation business structure, things that make it legally difficult to pursue these cases.

K: So with that in mind, why is the nursing home abuse and neglect attorney important?

J: In my opinion, yeah.

K: Your expert opinion.  

J: Well, in my opinion, the nursing home plaintiffs lawyer is necessary in order to hold someone accountable. Without us there to hold their feet to the fire and to publicize, there’s no hope for change. You know, we’ve talked a couple of times or mentioned a couple of times about me testifying before the Texas legislature, the committee that I was asked to testify in front of is called the Texas House Committee on Human Services and they had their between sessions. And they had this thing called an in-room charge, between the sessions there is a charge that they were tasked with investigating. And basically what the charge they were asking is “are our regulations and laws enough to deter bad actions on the part of the nursing homeowners?” And my testimony was no, because the regulations, which I think are for the most part are fine, are not, again in my opinion, they’re not enforced enough. Texas has primarily been one the ranked very low as far fines against nursing homes.

K: Do you think that plays into the fact that Texas has the highest percentage of one and two-star nursing homes?

J: Oh yeah, yeah, because they’re just not forced to provide the care they need to provide. That we’re paying them to provide. The majority of the people in the nursing homes are being paid for by Medicare and Medicaid which is us as taxpayers, are paying them this. And in Texas what nursing homes do is they go up to the legislature and they’re just constantly asking them to raise Medicaid and they’re constantly asking them to limit the amount of exposure they have for liability. And so those are the only two options we have, we have regulatory or we have the lawsuits. And when both of those are limited you’re gonna get more bad actions and if those are more vibrant and there is more muscle behind the regulations and also the lawsuit, you’re gonna have people acting differently because they don’t want to pay that money.

K: Alright so JT now that the 86 legislature is underway, what sort of movement do you expect to see on nursing home acuity, neglect, abuse, enforcement and anything else that has to do with nursing home regulations?

J: So, the regulatory aspect of nursing home practice in Texas is going through, the regulations are going through a rewrite right now. I’ve seen multiple drafts of it, I really like the changes that have been made. Of course, I could always ask for more, but I like what they’re doing. And so that will be interesting, but again, the whole issue is the enforcement of those regulations. So that something that takes place outside of the legislature. But in the legislature, I asked in my testimony, I asked the legislator not to set an arbitrary staffing number because of the acuity/census issue, and so I’m hoping that they don’t do that. Channel 8 in Dallas ran a six or seven part series on nursing homes in Texas, and they highlighted one particular aspect that caught the attention of the Texas legislator and that had to do with the ease with which convicted felons could get employed in nursing homes. I expect that loopholes involving that will be closed up, which is a good thing. It is a very good thing and so I do expect that to happen. Now I do also expect that there will be proposed legislation to for lack of a better term, defanging health and Human Safety Committee Commission as it relates to being able to fine nursing homes in Texas, which would be a shame. Because we have all these regulations, but then they’re gonna limit on how they can actually enforce the regulations. I expect because I’ve been told, that legislation is coming down the pike. Another thing that I did hear is that the tort reformers are going to try to file legislation to limit the percentage that attorneys can charge on their cases. And the argument is going to be that this way they can guarantee that affected families and the victims can get more money. But of course, when you reduce the percent, or the pay, that a plaintiff lawyer can get on these things it’s going to make it even that much more difficult for plaintiff lawyers to handle these cases. When you have a lower percentage and you have to spend so much money to prove up the case. And so what will end happening is you will have to use a term that is constantly used up at the capital, you’ll have unintended consequences. And the unintended consequence is that the victims will get less money because there will be fewer lawyers doing this.

K: Without the pressure from personal injury attorneys nursing homes go largely without consequences when neglect and abuse occur. As the approximately 76 million aging baby boomers move into retirement it is more important than ever that families empower themselves with what to look for in long term care. In addition, families need to be aware of the signs of nursing home abuse and neglect. It’s important to note that nursing home abuse and neglect isn’t just limited to falls and bed sores. The issues our most vulnerable population face can include choking, chemical or physical restraints, physical sexually and verbal abuse, malnutrition, and dehydration. It may be difficult to recognize the signs of nursing home abuse and neglect, especially among nonverbal residents. But to find out more about how you can empower yourself visit us at carlsonattorneys.com. We offer valuable resources on the topic you just listened to. We’d also love for you to leave us a review wherever you get your podcast content. Don’t forget to subscribe and recommend us to your friends. As always if you’re in need of a personal injury attorney give us a call at 1-800-359-5690, we’re available 24 hours a day 7 days a week. We care and we can help.