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Legal Speak

Taking Care of the Young

Published January 21, 2011 9:37 AM by Tony DeWitt

About one out of every seven people in nursing homes in the United States are less than 65 years old. That number has risen 22 percent in the last few years and accounts for about 15% of all nursing home residents.  The reasons for this vary, from poor management of diabetes and vascular disease, to ventilator care for neurologically injured patients, to simply better long-term care for many debilitating diseases. The fact is that as younger people enter nursing homes, and have longer stays, the liability risks to nursing homes skyrocket.

Every lawsuit filed for wrongful death has two components, damages for economic injury, and damages for emotional injury. Life expectancy is a factor in gauging both kinds of damage, and the longer a person's life expectancy, generally the higher the damages are in a wrongful death lawsuit.

For many nursing home residents in their seventh or eighth decade of life, their nursing home stay is short - often less than a year, and frequently less than six months - owing in large measure to the fact that isolation and other factors bring about psychological changes that hasten death. But younger residents, adjusting to what will be the rest of their life in the case of neurologic injuries, often have a long and steady decline in the nursing home setting, and quite often while this is simply a consequence of their injuries or disease, the nursing home gets blamed for it.

As I have relayed here more than once, documentation is the key in dealing with younger patients. Their status needs to be documented on a daily basis, and daily notes need to be written. Although nursing homes frequently document by exception because of the level of care, for younger patients daily documentation can be a case-saver where the claim is neglect. If a young patient develops decubitus ulcers or infection, that must be interdicted quickly and carefully, and documented fully. Failure to do that looks to a jury like the patient was simply being ignored.

One thing facilities can do for younger patients is keep a clipboard at the bed that lists the things that are most frequently done for the patient, like turning, suctioning, changing bed linens, and the like. While aides often are not allowed to chart, they could check a box that showed how many times they repositioned the patient, and also what other activities they did (feeding, etc.). The nurse in charge could then simply write a note at the end of the shift indicating that the patient had an otherwise restful day, and the documentation would provide good evidence that someone was minding the store.

The thing that motivates juries to act in nursing home cases is that there appears to be a disconnect between the amount of money being charged for long-term care, and the care actually being provided. When jurors see this, they react badly. But, in fact, the standards for documentation in skilled nursing facilities often fail to capture all the care a patient is given in the course of a 24 hour day. And, if the care is not documented, you frequently can't prove it was done!

There are few skilled nursing facilities that are able to document everything they do for residents, but those who err on the side of documenting things tend to be sued far less often than those who practice documentation by exception. 

It's something to think about.

posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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