When is a Nursing Home not a Nursing Home

By Attorney Ken LaBore

One of the most confusing issues I have found as an attorney that practices in the area of elder abuse and neglect in Minnesota is the definition of what type of facility the resident resides in. Many people are mislead to believe that their loved one is in a licensed nursing home or assisted living facility, when in reality the facility may merely be a boarding house offering few if any health and supervision services and no medical care or attention. Not only is this a potential waste of state and private resources, which are paying for a higher standard of care for a vulnerable adult than is actually provided, but often serious injury or death for those vulnerable person that need medical care and assessment that is simply not provided.

To address this problem my firm, Pearson Randall Schumacher and LaBore is writing a comprehensive guide to elders and their care givers to set forth the types of elder care in Minnesota and what are the legal obligations to the residents in each facility. This publication should be available on our webpage www.nursinghomeminnesota.com in the middle of December.

To the great credit of Sauk Rapids Minnesota, the City Council has enacted regulations to clarify the definitions of providers operating within their city limits. The complexity of language within the ordinance made it difficult for the committee to revise. However, facilities are now clearly defined and are more consistent with state definitions. For example, Good Shepherd nursing home is categorized as a “nursing home,” not a “licensed community residential facility.”

For the entire story about Sauk Rapids see: Sauk Rapids Refines Elder Facilities
If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503.

Why are Nursing Homes Delaying 911 Calls for Residents?
By Attorney Ken LaBore

Why would a nursing home not call 911 for a resident that is dire need of medical attention? This seems to be the very least that a facility that often is the reason that the emergency occurred could do for the vulnerable resident. So why don’t they always call 911? Because the Hospital is a Mandated Reporter under the Minnesota Vulnerable Adults Act, Minnesota Statute 626.557. Which requires a report for all physical injuries. The report is then investigated by the Minnesota Department of Health in the Office of Health Facility Complaints, who has broad sweeping powers to make changes at the facility, or if necessary to take the facilities licensure. It is my experience that nursing homes attempt to avoid this investigation by waiting to see if the proposed urgent care is “really necessary”. It is this delay that often results in the loss of life for normally treatable conditions. The most common example would be regarding falls. There are many falls in the nursing home environment, many are avoidable and most result in minor injuries. In waiting to bring elderly residents in to the emergency room for falls where the head was hit or injured often results in death by subdural hematoma, since the fall caused the brain to bruise and swell. If the resident were taken to the hospital, in these instances the pressure could be relieved by surgery and the recovery rate is very high. It is often the delay more than the underlying injuries that cause the death, since many of the injuries could be successfully treated if seen in time.

The attached story is an example of a nursing home not calling 911 for a choking resident who died as a result of their obvious neglect:

Agency says The Crossings didn’t give proper care to choking resident who died.
Wednesday, November 19, 2008
By James T. Mulder
Staff writer
The federal government has fined a Minoa nursing home $13,300 for failing to provide prompt emergency care to a choking resident who went into cardiac arrest and died.
The Centers for Medicare & Medicaid Services said The Crossings, an 82-bed home at 217 East Ave., put residents in immediate jeopardy and provided substandard quality of care, the most serious deficiencies.
The Crossings was one of four nursing homes in the region fined for poor care between June 1 and Sept. 19, according to the Long Term Care Community Coalition. The nonprofit group reports nursing home enforcement actions every quarter.
The fine against The Crossings stems from an Oct. 15, 2007, incident involving an 89-year-old woman, according to a report by the state Health Department, which investigated the case.
Here’s what the report said:
The woman was served a dinner of blueberry pancakes and sausage that a nurse aide cut into bite-sized pieces. A short time later, the aide noticed the women’s mouth was open, she was not breathing and her lips were blue.
The aide failed to call a “code blue,” an announcement that alerts all staff to an emergency situation and summons them to provide assistance. It also activates the 911 system. The aide also failed to start the Heimlich maneuver.
A licensed practical nurse who came to help did not take these steps, either.
The registered nurse supervisor who arrived on the scene did not immediately call a “code blue” or 911.
An investigation showed staff lacked training on “code blue” drills, which resulted in harm and put all residents in immediate jeopardy. The woman eventually was taken to the hospital and died.
The report shows The Crossings took steps to correct its problems.
The state also took enforcement actions against these homes:
Northwoods, in Cortland, was fined $3,000 for deficiencies found during inspections on March 29, 2007, and Sept. 25, 2007, for failure to provide necessary care to residents.
Rosewood Heights, Syracuse, was fined $2,000 for deficiencies in an Aug. 15, 2007, inspection. The most serious involved failure to provide proper treatment for pressure sores.
St. Camillus, in Geddes, was fined $1,000 for deficiencies dating back to Aug. 25, 2006. The most serious involved failure to provide proper treatment for pressure sores.
State Health Department documents show the homes corrected the problems.

Minnesota Nursing Homes are Protected by Bad Laws
By Attorney Ken LaBore
As Minnesotans we have come to appreciate a high quality of care by our health care providers. We have the Mayo Clinic, Abbott Northwestern, Methodist Hospital, the U of Minnesota and other fine providers of Medical services. THEN WHY IS THE CARE AT OUR NURSING HOMES SO POOR????
Many of the reasons that the best hospitals and medical providers set up in Minnesota as opposed to Iowa, Wisconsin or other neighboring states is that there are protections in Minnesota law and Jury Instructions to reduce the amount of exposure a Minnesota medical provider has when they make an error or commit “medical malpractice”. Minnesota statutes make it difficult to sue medical providers without first obtaining a doctor or other expert’s affidavit setting forth the neglect of the provider. This is often difficult if not impossible on the front side of a lawsuit before any discovery or investigation has occurred. Medical providers are also protected by obstacles such as constraints on pain and suffering to exclude pain from an the malpractice of a medical provider, which causes death. In addition to excluding claims for the pain and suffering up to death, there is no compensation for the loss of dignity in someone’s death. Nor is there a mechanism to compensate a family for grieve or anger over the usually avoidable negligence leading to their loved one.
Nursing homes and assisted living providers are considered medical providers and are protected by laws that also govern hospitals and doctors. These protections allow a nursing home to get out of severe acts of neglect by simply admitting fault and then shifting the argument to the facts that under Minnesota Jury Instructions would measure the damages for the death or injury. Unfortunately, these damages are limited for the most part to related medical bills and the value of the aide, comfort and society the elderly person was providing to the family members. The reality is that once you are in a nursing home you are receiving aide, comfort and society from your family and most likely not in a position to provide the same. Children care for their parents and grandparents at this stage of life and therefore, under current Minnesota law, there is very little value placed on the loss of an elderly person’s life.
Although, there are state and federal laws designed to protect the residents of nursing home facilities, these laws are not enough if when they are violated the damages measured from the loss of a vulnerable adult are constrained by laws designed to shield medical providers from liability and accountability. Quite frankly, to date it is more cost effective to pay for lawsuits which due to pro-providers laws, than to make changes to improve the quality of resident care.

A new high-tech piece of equipment makes getting around a little easier for seniors.
Without the caring support of the volunteers at the Central Carleton Nursing home, receiving the gift of walking wouldn’t be possible for some of the residents.
PHOTO BY LISA KEOUGH
Wesley Kennedy happily demonstrates how the Steadymate walker is improving the quality of life at the Central Carleton Nursing home.
The piece of equipment known as the ‘Steadymate’ walker has provided some seniors living at the nursing home the chance to be mobile, by providing extra security as they attempt to move around.
Licensed Practical Nurse (LPN) and rehab support worker Robin Jensen has seen a dramatic improvement in the residents who use the Steadymate. Two particular individuals come to mind when she thinks of the luxury of being able to walk.
“One lady chose not to walk after a traumatic fall since she was admitted about eight months ago, she was too afraid. When we received the walker, we asked her if she would like to try it and she said yes. Since then she has been up and walking around all the time,” Jensen explained.
The residents are not only pleased with themselves when they are able to get up and walk, but the other residents are so proud of their friends, it seems to encourage everyone around the home.
The Central Carleton Nursing Home heard about the walker from other nursing homes. Through communications with their volunteer organization, the volunteers themselves raised enough money – more than $1,700 – to provide the nursing staff with the ability to use this walker for their patients.
The advanced-design walker provides several advantages over the average four-legged walker.
The Steadymate offers a much more support and is safer than traditional walkers.
There is a larger table top on the upper part of the walker for residents to steady themselves if need be and to give them a sense of security.
It also has handle bars to grab at the top of the table. There are different slings, one that is a belt that goes between the thighs to act as a type of swing in case the resident happens to fall, and one that buckles behind the back for added support.
The walker itself is designed not to fall over and potentially harm the person using it. If a resident does happen to fall the walker will roll before it tips over.
Home administrator Mac Clendenning credited the nursing home’s volunteer association for making acquisition of the walker possible.
“Last year we were able to receive a blanket warmer that was a great help and this year we were able to have this walker,” Clendenning said. “This is the strongest group of volunteers that I have had the opportunity to work with and I really don’t know what we would do without them. We are very fortunate.”
Home resident Wesley Kennedy really enjoys the time he gets to spend with the walker, as well the nurses that assist him.
To demonstrate how the walker works, Kennedy got out of his own wheelchair and belted into the walker with help from the nurses. Before he was fully strapped in, he started to go. The entire time he had a smile on his face.
“It’s a beautiful thing to stand up, I’m having a great time,” he said proudly