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Articles Posted in Nursing Home Abuse & Neglect

It has now been been almost one year since Massachusetts nursing homes locked their doors to the families of their residents. This action, while initially taken on March 13 2020 to prevent transmission of the Covid-19 virus, has turned into an obscene excuse for drawing down an Iron Curtain between residents and their families, who are desperate to know that their loved ones are not being neglected.  There was some relaxation of this visitation ban in late 2020, but the conditions that a family member must meet in order to visit a loved one, remain largely very difficult.  After tolerating more than one year of this pain and with vaccine rollouts now a reality left & right, this “lockout” is now no more than an excuse to, essentially, operate their businesses in secret, far from the ‘prying eyes’ of visiting family members.

Stop for a moment and try to imagine what it would be like for you as a family member forbidden from seeing your loved one who is in a nursing home or a Massachusetts “skilled nursing facility” (almost an oxymoron).  How would you know he or she was being properly cared for?  Answer:  You wouldn’t.  As a Massachusetts nursing home neglect & abuse attorney, I can assure you:  Under the best of circumstances, nursing home residents, as well as some Massachusetts rehabilitation hospital patients, are often neglected and abused.  The cases I’ve come to know as an attorney are horrific.  And secondary to family members, is the primary effect this lockout has on residents themselves:  They are lonely, frightened, often neglected, and often without anyone to advocate for them.  While the federal Centers for Medicare & Medicaid Services (CMS) previously allowed for some minor relaxation of these “lockout orders” in September 2020, family members as a whole still cannot easily, readily visit Massachusetts nursing home residents.

As a legal expert in this field, I have been interviewed by the media about this issue and nursing home neglect in general, and I have blogged about it previously as well.  More people need to know about this cruelty and neglect that is an everyday reality for tens of thousands of Massachusetts nursing home residents, and I encourage readers of my blog to share this post with others – just click on any of the social media icons just below the title to this post at top left, above.  Viral messaging like this can spread in a positive way, very quickly.

With the actual arrival of a coronavirus vaccine now just days away, U.S. Health and Human Services Secretary Alex Azar stated on CBS’ Face The Nation today that “all” nursing home residents could receive vaccinations by Christmas.

Because I’ve received so many requests for help and legal representation by the families of Covid-infected Massachusetts nursing home residents, I’m heartened to hear this – but skeptical of the timeframe offered.  As almost any knows after ten months of this pandemic infecting every aspect of life in this country, this virus affects primarily the elderly (i.e., over 72 years old) and the those that are immunocompromised.  People who are residents of nursing homes and rehabilitation centers are acutely vulnerable, because they are old, weak, and because viruses and bacteria are rampant in these environments.

The fact that Governor Baker decided to provide legal immunities to Massachusetts nursing homes and Massachusetts rehabilitation facilities was, in my opinion as a Massachusetts nursing home neglect attorney, ill-advised and counter-productive.  While hospitals and the nursing home industry prevailed in that fight, it was, both legally and socially, an awful decision.  One needn’t be an attorney to realize why:  Think about it:  Health care facilities such nursing homes and assisted living facilities have always been, even under “normal” circumstances when they can be sued for negligence, known as places where patient neglect and abuse can be commonplace.  Shielding them from most negligence suits during a pandemic – a time when they should be at the height of vigilance about patient care in those facilities – is the height of folly. This legal immunity was provided on top of all visitors to Massachusetts nursing homes and assisted living facilities being banned from entering these facilities since last March – including family members.  The result? Families of nursing homes have been blind about how their loved ones are being treated.

As readers of this blog and family members who have loved ones in nursing homes and long term care facilities know all too well, for nearly the past six months, family members have been unable to visit their loved ones, due to Covid-19 restrictions.  This has caused heartache and anxiety that people who have been spared the pain of placing a loved one in a nursing facility, can never fully understand.  Try to imagine that your mother or father, a grandparent, an aunt or uncle or someone close to you, is literally locked in a nursing home or long term care facility for months — places that are too often notorious for poor patient care – and you aren’t allowed inside to visit your loved one and verify his or her condition or care.

Such has been the plight of families with loved ones in Massachusetts nursing homes, “skilled nursing facilities”, long term care facilities, and rehabilitation hospitals.  Aside from family members, just try to imagine the fear and despondency of patients and residents themselves, many of whom suffer from Alzheimer’s Disease or cognitive decline.   As a Massachusetts nursing home neglect lawyer, I’ve seen these awful situations far too often, even under “normal” circumstances.   The past six months with Covid-19 has been intolerable, for everyone involved.

Gladly, the federal agency that oversees such regulations for nursing facilities and rehabilitation hospitals, the  Centers for Medicare & Medicaid Services (CMS), just released a directive substantially reducing those restrictions.

Readers of my blog know of my devotion to protecting the legal rights and the health & dignity of nursing home patients, “memory care” patients, as well as hospital and rehabilitation center patients.  These people are the elders who raised us, and they are now among the most vulnerable and often forgotten in society.  While I been practicing in this sub-specialty and writing about these issues for several years, I’ve recently published a series of accelerated publications on this topic, in the wake of COVID-19.  Unfortunately, in today’s post, I have some troubling news to report.

At the behest (more accurately, pressure) of the Massachusetts nursing home industry and its related healthcare partners, the Baker administration recently passed & signed special legislation providing for legal immunity against the nursing home industry and hospitals, for injuries to patients occurring during the COVID-19 problem.  The effective date of the liability immunity providing to health care organizations in the act, is retroactive to March 10, 2020.  The text of this new law can be found by clicking here.

This legislation has profound and very troubling consequences for the care, the safety and the health of nursing home patients in this state.  Legally, under normal circumstances, if a patient in a Massachusetts nursing home, rehabilitation center or hospital suffered injuries due to negligence on the part of a staff member of the provider, that provider could be held liable for resulting damages, especially pain and suffering.  The plaintiff in such a circumstance (which would be either a guardian, a health care proxy, or the patient him or her self), would first need to demonstrate that a relevant “standard of care” had been breached by the nursing home or other defendant, in order to recover damages.  That “standard of care” is normally deemed to have been violated if the plaintiff can demonstrate that the actions or inactions involved in the matter, constituted what is called “ordinary negligence.”  This is a standard of evidence that can sometimes be legally challenging, but is typically not a bar to legal recovery.

We hope that you’ve been dealing as well as you can with all the frustration from what can only be described as this awful situation with COVID-19, and that our previous posts on this subject have been of help to you.

Predictably, a number of Massachusetts nursing homes and rehabilitation facilities have been reported to exhibit troubling rates of COVID-19 infection, and possible violations of state and federally imposed health, safety and infection control protocols, the Massachusetts Department of Public Health/DPH recently reported.

The average age of people who have died of COVID-19 in the facilities reported is 81. The death rate of those 80 and older is 393 per 100,000, which is more than four times as high as the next highest age group.

The coronavirus epidemic has caused heartache enough for people who have been infected or lost loved ones due to the infection.  And while everyone is (for the most part) understandably taking measures to protect themselves and safeguard their own health, who is protecting our seniors and the frail in Massachusetts nursing homes?  Is the thinking for many people who don’t have a loved one in a nursing home, “That’s not my problem?”

If this viral epidemic has exposed anything, it’s exposed how few Massachusetts nursing homes regularly take measures necessary to prevent the development or spread of viruses and bacteria in their facilities.  As a Massachusetts nursing home neglect lawyer, I can assure my readers:  It’s a fact that most nursing homes and “skilled nursing facilities” are filled with viruses and infectious diseases.  Don’t be fooled by what you can see in these facilities, with the naked eye.  It’s also what you can’t see that threatens patient health & safety:  Viruses and bacteria.  To keep these infectious diseases at bay requires diligent effort and attention to proper disinfection procedures, methods, procedural systems and algorithms.  And the Coronavirus epidemic has exposed this (literally) dirty little secret:  That as many as two-thirds of nursing homes in Massachusetts were cited a minimum of once in the past three years for deficiencies in infection control.

Massachusetts law requires nursing homes, rehabilitation centers, “skilled nursing facilities”, assisted living facilities as well as businesses not related to health care, to undertake prudent measures to to reduce the risk of spreading the Coronavirus as well as other infectious diseases.  Among these measures are strict disinfection protocols, as well as constant monitoring of any employee or patient who has exhibited symptoms of the virus, such as fever, dry cough or muscle aches and pains.  Once such a potentially infected person has been identified, an investigatory process known as “contact tracing” must be immediately implemented.  This involves re-tracing that person’s contact with other individuals, to warn those individuals that they may have been infected with the virus, and taking reasonable measures to remove that person from the facility’s population.

I’ve warned my clients, friends, and readers of this blog in previous posts several times, but I know that I can’t say it enough, so I’ll say it again in today’s post:  If you believe that your loved one in a Massachusetts nursing home, Massachusetts nursing care facility, Massachusetts long-term care facility or “Massachusetts Memory Care Center” (the newest term that the nursing home industry has developed to capitalize on the exploding elderly population suffering from Alzheimer’s Disease and dementia), is being neglected, mistreated, or abused in any way, you cannot rely on your reporting it to the Massachusetts Department of Public Health (DPH) to come in and address the problem rapidly or effectively.  They are not the cavalry – they are not going to come and “save the day” any time soon.

The Massachusetts DPH is part of a massive state bureaucracy.  It is over-worked, under-staffed, and while many of those who work there are dedicated to their jobs and sincerely care about their responsibilities, many more aren’t so dedicated.  Trust me, as a Massachusetts nursing home neglect lawyer, I know.  I’ve seen many such a lazy DPH staffer, in the many years that I’ve handled Massachusetts nursing home neglect cases.  But the average person who isn’t familiar with these matters doesn’t know this (they wouldn’t be expected to.)  They mistakenly think, if they suspect that their loved one is being neglected or abused, that if they threaten the nursing facility that they will report the matter to the state DPH, the nursing facility will react in fear and leap into action to immediately and permanently correct the neglect or abuse.

If you’re in such a position right now, you’d be a fool to believe that such a result will occur.  The fact is, most Massachusetts nursing facilities are fully aware that it takes the DPH months to even begin to act on a complaint against a Massachusetts nursing home, Massachusetts rehabilitation center or nursing facility.  More so, they know that once the DPH does get around to acting on the complaint, the nursing home will have long eliminated any evidence of the reported neglect or abuse, and as a result, in many instances the nursing facility will not be punished by the DPH.  And I’m sorry to say this, but you’d be very foolish to think that the standard technique (read:  ruse) that 99.9% of these facilities employ to assuage complaining family members, will be in any real way effective.

I’ve written many times in this blog about how far too often I’m called by clients and prospective clients, reporting their suspicions that a loved one or friend in a nursing home is being neglected or abused.  As a Massachusetts nursing home neglect & abuse lawyer, I see these cases too often, and I can assure you that they are among the saddest – and most infuriating – of injury cases that I litigate.

Just yesterday, Massachusetts Attorney General’s office reported that it was imposing fines on seven Massachusetts nursing homes for substandard care, revolving around cases of patient neglect or abuse.  The fines range from a low of $30,000 to a high of $200,000.  As part of this civil settlement (and the civil nature of this action is key to this post,) these nursing homes will be – supposedly – required to “improve staff training”, conduct yearly self-audits of their progress, and report that progress to the attorney general’s office for the next three years.  While some might see this as severe disciplinary action against these nursing homes, as a Boston nursing home abuse attorney, I find these actions lacking in more severe punishment, and lacking in tougher oversight of these businesses.  Example ‘A’:  Exactly what does “improve staff training” mean?  It’s vague and nonspecific, as an attorney I have little idea of what it means, and I’m sure that these nursing homes don’t have any specific ideas, either.  Worse, Example ‘B’:  The “auditing” – i.e., oversight – that these nursing homes are required to follow up on, is self auditing – not auditing and oversight conducted aggressively submitting by an independent authority such as either the Attorney General’s office, or the Massachusetts Department of Public Health.  Expecting a nursing home to self-audit its “improvement” is like asking a physically abusive person to report to authorities that he doesn’t push anyone around anymore, and expecting that person to be honest.  If anyone in the Attorney General’s office thinks for one minute that these businesses will honestly, aggressively and diligently police themselves, I have a bridge I can sell them a bridge in Brooklyn.

What was needed here was criminal prosecution, not merely civil fines and ‘settlement agreements.’  The neglect and abuse that these nursing homes were found to have engaged in, was not merely ‘troubling’, but sickening:  One patient was dropped by aides, and broke her legs.  The staff knew about the injuries, but didn’t report it for over a day.  The patient died after suffering massive internal bleeding.  Two other patients bled to death after suffering cuts that were not attended to.  Another died from a fatal medication error, and others were negligently allowed to wander off the property.  Yes, hitting such substandard and negligent nursing homes with financial fines will hurt them – but only temporarily.   Financial penalties, alone, won’t be enough to stem the tide of Massachusetts nursing home neglect and abuse.  As an attorney who specializes in nursing home neglect & abuse cases, I see the failure of the state to criminally prosecute these businesses, as analogous to the state failing to criminally prosecute the Catholic church for failing to stop sex abuse of children and minors by clergy members – instead expecting church leaders to police themselves. Such myopia, and frankly, stupidity, is stunning.  Had criminal prosecution of church authorities been pursued a long time ago, that crisis never would have escalated to the level that it did.

As I was pondering what to write about this New Year’s Eve 2018, I thought about various topics of Massachusetts injury law that I could talk about to my readers.  Defective and dangerous products? Medical negligence?  Commercial property slip & fall accidents?  Construction site accidents?  Workers compensation?  Wrongful death?  There’s a lot that I could write about.

But two areas stand out as requiring greater attention and vigilance both in the new year, and every year.  And they are these:

  1.  Cell phone use when driving, and 2)  Nursing home neglect & abuse.

In my previous post on this topic, I discussed what pressure sores, decubitus ulcers, or pressure ulcers (all the same thing) are, and why they develop. These types of rehabilitation facility and nursing home injuries fall into four basic categories:

Stage 1: This type is the least damaging. These sores only affect the upper layer of the skin. It may appear red or feel warm to the touch. If re-positioned, the sore may disappear within 2 or 3 days.

Stage 2: This occurs when the sore digs deeper beneath the surface of the skin. The skin is broken, leaving an open wound that may ooze pus or develop a blister. It’s painful. Again, re-positioning is critical, but the wound first needs to be cleaned with sterilized water or a salt-water solution and dressed with sterile gauze. Improvement should be seen within a week to ten days. Continue reading