Elder abuse is a growing problem, and in its wake, families often don’t know how they can be an advocate for their loved ones. I recently sat down with Deborah Truhowsky, an attorney who litigates cases of elder abuse and neglect, to define elder abuse and discuss the causes of the problem.
Truhowsky shares potential reasons why elder abuse happens and how you can intervene in situations of neglect. She also discusses the laws surrounding elder care, and how you can keep the nursing home financially responsible for neglecting proper care for your loved one.
Jaimie Blackman: Deborah, I am glad for the opportunity to talk to you about this. Could you please define elder neglect and abuse?
Deborah Truhowsky: Elder neglect and abuse can have many definitions and forms. It can be physical, psychological, or financial abuse.
Jaimie Blackman: Which area do you focus on?
Deborah Truhowsky: I focus on situations where someone is a resident or patient in a nursing home, hospital, assisted living or home-care setting, and they are neglected or abused when they are given care or should be given care.
JB: Can you give me an example of common abuses that you’ve seen?
DT: I see two main types of neglect. The first is neglect due to the failure to protect skin integrity. Unrelieved pressure from prolonged sitting or lying in bed can cause skin to breakdown and the development of pressure ulcers, also known as bed sores and decubitus ulcers. We most often see skin breakdown on the sacral area, hips and heels. It is a very common type of neglect that I unfortunately see which can cause extreme pain and infection.
The other common type of neglect happens when the facility hasn’t taken appropriate precautions to prevent falls.
JB: A friend of mine went into the hospital and developed a large bedsore which then got infected, and eventually he died from the infection. Are these bedsores preventable?
DT: Bed sores are staged from I to IV with stage IV being the most serious. Under the NY State Regulations, the burden falls on the nursing homes to show that they’ve taken all steps reasonably necessary to prevent skin breakdown from occurring. The medical literature indicates that pressure ulcers are preventable. In my experience, Medicare will not reimburse hospitals for care for pressure ulcers that progress to stage III or IV under their care.
As most of us have observed, people in nursing homes and hospitals can be found lying on their back or sitting in wheelchairs. If they have lost their ability to turn and position themselves, whether due to a stroke or because they’re weak, they cannot turn the way we are able to turn, and if they’re left in that position for hours on end, their skin can start to break down because of the unrelieved pressure.
JB: Deborah, why aren’t these people being turned more often? Is it a staffing problem at the nursing home or hospital?
DT: Well, I don’t like to generalize because each situation is looked at individually. However, to turn someone in the fashion that the experts say someone should be turned and positioned–which is every 2 hours if they are in bed, or every hour if they’re in a chair–facilities need to have appropriate staff to do this. If they don’t have enough staff, or properly trained staff, or have care plans that properly address each patient’s needs, then the patient is not being turned in the proper fashion.
JB: So is the burden on the family to hire a nurse or an assistant when they bring a loved one into a nursing home?
DT: The burden is 100% on the facility. A facility should not admit a resident or patient unless they are able to give that person proper care. That is based on regulations that the Department of Health has set forth in New York. There are specific regulations found in the New York Code Rules and Regulations and they set forth a specific standard of care that nursing homes are required to give their patients. I do encounter families who out of frustration, and if they have the financial ability, will hire someone. However, the facilities’ do not allow a private aid to actually turn and position a resident or patient. The aid is there as a companion or someone to be there on behalf of the family when the family can’t be there, but they’re not allowed to give care.
JB: That shocks me. So all they can do is nag and be a pest to the facility itself? Why don’t nursing homes comply with regulation? Are they not making enough money?
DT: I can’t speak to the profitability of nursing homes. In my experience poor care results from inadequate staffing, unqualified or improperly trained staff or in the worst scenario, blatant disregard of an individual’s needs.
JB: Under the grim circumstances, do you promote aging in-home? We set up hospice for my parents at the end of their life. My mom was in my home under hospice care and my dad had hospice care in Florida. In both cases the care was excellent.
DT: In my experience, whenever someone is receiving care from an outside agency or institution, the family needs to be involved and they need to be an advocate for their loved one. They must observe and check on the quality of care and the physical condition of their loved one, because people can have wonderful experiences, as you did with your parents, or they could have circumstances where they are neglected even in home-care on a one-to-one basis. It just comes down to the quality of care a person is receiving.
JB: Are you able to collect financial consideration for these patients? Is it during their lifetime or after if they die because of the neglect?
DT: Often we are brought in when someone’s situation is quite serious. If the proper protocols to heal wounds are not in place, then wounds can become seriously infected, sometimes to the point where the person passes away. The case can still be brought if they pass away, by their next of kin. It then becomes an asset of that person’s estate and the facility can still be held accountable even if the resident passes away. We routinely litigate cases on behalf of injured parties who have passed away. In all cases we seek financial compensation for their pain and suffering and wrongful death, where applicable.
People often ask if they can bring an action if their loved one is in a nursing home and receiving Medicaid benefits. The answer is Yes. The Public Health Law has provisions for people in these situations allowing them to be compensated for neglect and abuse.
JB: If I came to you because my father has a large bedsore and is very ill, and you take the case, but afterwards he passes away…What are the legal challenges you face in bringing compensation to my family because of that neglect?
DT: The death of an individual does not make a case more difficult to litigate because the medical records are still available. In most cases family members also have clear recollections of the care given.
JB: In your experience, is the greater percentage settled out of court or does it go before a jury?
DT: Even though my firm has successfully settled many cases, we prepare every case as if it would be tried before a jury.
JB: Who puts the value on that compensation if someone dies from a bedsore? Is it your firm or the judge?
DT: During settlement negotiations our firm makes a demand for an amount of money that our client (and my firm) believes will compensate an individual for their pain and suffering and financial loss, if applicable. If a case is tried, a jury determines the amount of damages.
JB: Deborah thank you for sharing your knowledge on this difficult subject.
DT: Jaimie, before we end, I would like to acknowledge that for most people it is financially difficult to advance legal fees. Therefore, I feel it is important to know that the neglect and abuse cases that we have discussed are handled on a contingency fee basis, which means that our firm is only paid a fee if there is a recovery at the end of the case.