A recent news headline in Grand Rapids, Michigan announced that two care givers working in an assisted living facility would stand trial in the death of an 85-year-old Alzheimer’s resident who was in their care. The natural response to such news is, what did they do or not do? In this case, an elderly woman was able to leave the facility in the middle of the night and wander away without being missed, and when she was found, she had died from exposure. One of the two aides was charged with providing misleading or inaccurate information on the resident’s medical chart after the aide claimed the woman had been checked on during regular half-hour bed checks. The other aide initially lied about not hearing the door alarm go off and then later admitted she heard it when she was with another resident, but she did not check to see if anyone had left the facility; instead, she just reset the alarm. If convicted, the two aides could each face up to four years in prison and/or a $5,000 fine.
What Is Nursing Home Liability?
Nursing homes and assisted living facilities are required by law to provide a certain level of care for the residents living in their facilities. This level of care is determined by current industry standards. For example, if a resident in a nursing home is being cared for by a staff member and is injured or dies, then the nursing home may be considered legally responsible for that injury or death depending on the circumstances of the incident. It is necessary that any claim for a wrongful injury or death be proved and that it be clearly demonstrated that the “duty of care owed was breached”; and also, that the “negligent breach of duty owed” was the reason for the injury or death of a resident.
Most incidents where neglect and abuse occur involve direct care staff who provide the day-to-day personal care for the nursing home residents. These direct care staff include registered nurses, licensed vocational nurses, licensed practical nurses, physical therapists and certified nursing assistants. So, it is important for nursing home facilities to be diligent in their hiring practices.
Although most residents in nursing homes are well-cared for, any instances of nursing home abuse can potentially result in a liability suit. A survey by Nursing Home Abuse Guide indicated that “up to 44 percent of nursing home residents reported that they had been abused at some time” while they were residents, and most of those who were surveyed (95%) indicated that they had seen another resident neglected. A report from Congress, where some nursing home records were examined over a three-year period, showed that almost “1 in 3 nursing homes were cited for violations that had the potential to cause harm and almost 10 percent of all nursing homes had violations that caused actual harm, serious injury or “placed a resident in jeopardy of death.”
Nursing Staff and Liability
All healthcare providers are required to perform their tasks in a legal and ethical way. If the way a licensed nurse or a certified nursing assistant/aide carries out his/her work violates a law or an ethical principle, it creates a liability; and, that liability can be considered from a civil or a criminal perspective. It can result in the permanent loss of license or involve penalties that may involve incarceration, fines, or probation.
Laws to oversee and ensure the safe practice of nursing have been around for over 100 years. Today, all states and territories have enacted a nurse practice act (NPA), and each state’s legislatively enacted NPA has a board of nursing (BON) with the authority to develop administrative rules or regulations to make the law specific and clear.
Licensed nurses-Registered Nurse (RN), Licensed Vocational Nurse (LVN) and Licensed Practical Nurse (LPN), can be liable for injuries they have caused to a resident. Both the nursing home and the nurse can be held liable. It depends upon the circumstances of the incident.
Several of the most common liability issues cited regarding nurses are:
- Failure to abide by the Nurse Practice Act (NPA)
- Failure to follow the Standard of Care (SOC)
- Failure to adhere to policy, protocol or procedure,
- Failure to document, including-lack of documentation, altered documentation, missing or “lost” documentation, and/or incomplete documentation,
- Failure to recognize, appreciate, report, or follow-up on a change in a patient’s condition,
- Failure to communicate across the healthcare provider spectrum, and
- Failure to provide a safe environment.
Some of the most common causes for errors involve inadequate patient monitoring, poor judgment, ignoring patient complaints, fatigue, inadequate staff training, faulty communication, improper delegation, job overload and poor nurse to patient ratio.
Certified Nursing Assistants/Aides (CNAs) play an important role in the care of the more than 1.7 million people living in skilled nursing homes and assisted living facilities across the United States.
As unglamorous and demanding as many of the tasks performed by CNAs may be, when they are done with caring hearts and respect for the person in their care, CNAs make a significant difference in the lives of the frail elderly, and others who find themselves needing more care than they or their families can provide.
The most common liability a CNA faces is an allegation of negligence in the care of a resident. For example, not checking the temperature of the water before giving a bath and then having the water burn the often tender skin of an elderly resident. Or, transferring a resident from his wheelchair to his bed without assistance when the resident’s care plan specifies that transfers should be done with two staff members or maybe the use of a lift, and the resident falls and is injured. Another example is not checking a resident’s food tray to make sure that the food is correctly selected and prepared for that particular resident. A resident who is supposed to have their food pureed can choke on regular food; and, if a resident has food allergies such as an allergy to shellfish or peanuts, being served those things can cause life-threatening events.
In a case recently reported in the news, a nurse aide was indicted on a third-degree charge that she neglected and abused a 91-year-old woman with Alzheimer’s at a New Jersey nursing home. She was caught on a hidden camera abusing the resident, who fell to the ground as she attempted to get out of bed, hitting her head and body as the aide looked on for a considerable period of time without responding to the woman’s injuries. Reportedly, the nurse aide sat and played with her phone while the woman lay injured and bleeding on the floor. The aide indicated she wanted to teach the resident to stop trying to get out of bed. Third-degree charges carry a sentence of three to five years in state prison and a fine of up to $15,000.
Another frequent allegation against CNAs involves assault and battery allegations. Battery is intentionally or offensively touching a resident without their informed consent, e.g., slapping, shaking or pinching a resident or using unnecessary force when handling a resident in any way.
It is considered assault for a CNA to cause a resident to experience reasonable fear or anxiety by thinking they are going to be touched or hit. Threatening to use forceful touching is considered assault.
Assault and battery allegations against CNAs frequently result in criminal liability. For example, a CNA was arrested for slapping an elderly dementia resident in the face, resulting in her arrest for Endangering the Welfare of an Incompetent or Physically Disabled Person, and she faces a 4-year prison term if convicted.
Abuse is another allegation that may be reported against CNA’s, and can take many forms – physical, emotional or psychological, sexual, neglect and misappropriating money or possessions. A recent example of abuse involves social media violations of resident privacy. Consider the following recent headlines from a variety of locations involving nursing homes and employees accused of abuse –
Four nursing home aides arrested for taking ‘undignified’ photos, videos of residents
Ex-nursing home aides get probation for battery of 97-year-old resident
Nursing home worker charged with sexually assaulting resident in Virginia facility
Former nursing home business office manager sentenced to prison for theft from residents
Nursing home cited in death of unattended resident injured while dangling from lift
The fact that cases of nursing home abuse and neglect are making news headlines in an ever-increasing number is alarming. However, it is important to note that the majority of nursing homes are exercising utmost care and concern for meeting their legal and ethical responsibility for providing care to their residents. It is in the best interests-morally, legally, and financially- for all concerned that nursing homes excel in providing the care their residents require.
