Many of the incidents of neglect and abuse which occur in a nursing home or elder care environment is due to a lack of adequately trained professional nursing, and other staff members.

What Does the Law Require?

Minn. Stat. Sec. 144A04, Subd. 7 (2009).
My understanding is that since the RUG-III classification began, we’re back to the 2.0 hours as the minimum. (Rules section 4655.5600 refers to boarding care homes.)

Subd. 7.Minimum nursing staff requirement.
Notwithstanding the provisions of Minnesota Rules, part 4655.5600, the minimum staffing standard for nursing personnel in certified nursing homes is as follows:
(a) The minimum number of hours of nursing personnel to be provided in a nursing home is the greater of two hours per resident per 24 hours or 0.95 hours per standardized resident day. Upon transition to the 34 group, RUG-III resident classification system, the 0.95 hours per standardized resident day shall no longer apply.
(b) For purposes of this subdivision, “hours of nursing personnel” means the paid, on-duty, productive nursing hours of all nurses and nursing assistants, calculated on the basis of any given 24-hour period. “Productive nursing hours” means all on-duty hours during which nurses and nursing assistants are engaged in nursing duties. Examples of nursing duties may be found in Minnesota Rules, parts 4655.5900, 4655.6100, and 4655.6400. Not included are vacations, holidays, sick leave, in-service classroom training, or lunches. Also not included are the nonproductive nursing hours of the in-service training director. In homes with more than 60 licensed beds, the hours of the director of nursing are excluded. “Standardized resident day” means the sum of the number of residents in each case mix class multiplied by the case mix weight for that resident class, as found in Minnesota Rules, part 9549.0059, subpart 2, calculated on the basis of a facility’s census for any given day. For the purpose of determining a facility’s census, the commissioner of health shall exclude the resident days claimed by the facility for resident therapeutic leave or bed hold days.
(c) Calculation of nursing hours per standardized resident day is performed by dividing total hours of nursing personnel for a given period by the total of standardized resident days for that same period.
(d) A nursing home that is issued a notice of noncompliance under section 144A.10, subdivision 5, for a violation of this subdivision, shall be assessed a civil fine of $300 for each day of noncompliance, subject to section 144A.10, subdivisions 7 and 8.

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect 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@mnnursinghomeneglect.com, or call Ken at 612-743-9048.

Recently there was been news concerning a resident in a Minnesota Nursing Home who was the alleged victim of sexual abuse from a nursing home employee.

According to a Pioneer Press Article which related the details of a Minnesota Department of Health Report that concluded abuse was likely in Highland Chateau Health Care Center.

The state agency alleged that an ex-employee of the facility had on several occasions tried to touch a resident’s breasts, exposed his penis and had her provide oral sex.   However, no charges appear to be filed to date.  The employee had apparently been the subject of a previously allegation of inappropriate sexual behavior at a different facility, but the allegations were not substantiated.

To see if a Minnesota Nursing Home or elder care facility has a history or substantiated neglect, review the Minnesota Department of Health, Office of Health Facility Complaints, Investigative Findings at the MDH website.

Signs of Nursing Home Abuse

There are a number of different warning signs that could suggest that a nursing home is not providing adequate health care. In many cases, these warning signs will go unnoticed until it is too late. In other cases, these warning signs are simply brushed off by family members and friends. And, in even more cases, these warning signs are hidden behind closed doors. Whatever the case, it is important to be on the lookout for any signs of nursing home abuse or neglect. Nursing homes are supposed to be a place of support and security; however, this is not always the case. If you notice any warning signs that a nursing home is not up to standard, then it is important to contact a elderly  abuse attorney immediately.

Physical Signs of Nursing Home Abuse

Physical signs can often be a great indicator of abuse. If your loved one is showing any of these symptoms, it could be a sign of neglect or abuse:

• Bed sores/ pressure sores
• Torn clothing or personal items
• Constant falls and traumas
• Excessive weight loss or weight gain
• Fecal/urine smells
• Pale complexion
• Lack of personal hygiene
• Presence of dirt, lice, fleas, etc.
• A change in personality

Keep in mind that abuse can also occur without any shred of physical symptoms. It is also important to remember that emotional abuse be just as common and devastating to the nursing home victim.

Signs of Nursing Home Neglect or Inadequate Care

There are a number of cases where the neglect or abuse is not as easy to recognize as the physical signs. One of the best ways to understand if a nursing home is providing adequate care is to understand the Minnesota Nursing Home Resident Bill of Rights.  Some of the signs that neglect or abuse is taking place may include:

• Lack of staff members and lack of service provided
• Rudeness of staff members
• Lack of entertainment facilities
• Lack of patient morale
• Lack of proper diet, nutrition and lifestyle facilities
• Lack of proper heating or cooling
• Lack of proper hygienic cleaning

If you notice any of the following, then it is important to discuss your concerns with your loved one as well as with an experienced nursing home abuse lawyer.

The Minnesota Eldercare Rights Alliance has indentified the most common types of elder abuse and the signs to look for each type

Self-Neglect

poor hygiene, not taking prescribed medications, house

becoming dirty or hoarding behavior is evident, utilities shut off

due to lack of payment. Often self-neglect can be signs of

other abuse such as financial exploitation.

Physical Abuse

bruises or injuries that don’t seem consistent with explanation,

broken furniture or possessions (evidence of an altercation), an

elder’s report of being hit, slapped or abused.

Financial Exploitation

sudden unawareness of financial matters, bills not being paid

even though elder should have resources to pay bills,

unexplained transfer of assets or possessions, an elder’s report

of being exploited.

Emotional

crying spells, becoming withdrawn or agitated, sudden changes

in behavior, an elder’s report of abuse

wounds or injuries not healing or being treated, medications or

other prescriptions not being filled, bills not being paid (risking

eviction from home), an elder’s report of maltreatment.

Sexual Assault

sudden withdrawal or isolation, bruising around genital area, an

elder’s report of assault or rape.

For a copy of a brochure regarding elder abuse from Eldercare Rights Alliance

Contact Us For A Free Consultation

Realizing that your loved one may be in danger and may not be receiving the utmost quality of care can make you feel anger, helpless and confused.  You most likely will not know what to do or who to turn to for help with this injustice. This is why it is so important to contact a qualified elder home abuse lawyer to help assess the situation and work on the case.

If you or a loved one has suffered an injury from neglect 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@guardianlegalservices.net or call Ken at 612-743-9048

Reasons for Falls (MOST ARE PREVENTABLE)

Improper Assist

-Attempting to get up on own when unable

Cognitive Changes can effect balance and ability to walk leading to falls

-Medication Error?
-Reaction to medication?
-Blood Sugars out of range?
-Illness/fever/flu?
-Septis?
-Dehydration?
-Stroke?

Would you agree that many falls that occur to the elderly are AVOIDABLE if:
-proper assist when needed?
-given adequate supervision when needed?
-no medication problems?
-redirected when necessary for resident safety?

Why is it important to avoid FALLS and fractures?
-Already frail
-Osteoporosis
-Fractures lead to pneumonia and death

Bedrest causes:
-Weak or ineffective cough
-Lungs Compress and fail to expand fully “atelectasis”, making infection more likely
-Aspiration of Food or Upper Airway Secreations
-Delirium related to post-anesthesia complications, pain , or the side effects of pain medications
-Poor Nutrition causing muscle weakness, which affects ability to cough, take breaths and coordinate swallowing muscles

Deaths related to falls can occur immediately, (subdural hematomas) But, often can take 6-12 months or more to occur due to cause death?

Additional Risks from Falls:

-UTI from indwelling bladder catheters and because of urinary incontinence related to fracture

-Surgical Wound Infections
-Blood Clots, Malnutrition, Pressure Ulcers, and Additional Fall Related to Fractures
-Further Additional Falls

Falls – A Minnesota and National Public Health Concern

• Falls are the number one cause of trauma deaths, non-fatal major
trauma and other trauma care in Minnesota. The vast majority of these
cases are among older Minnesotans.
• Minnesota’s fall death rate is almost twice the national average and it is
increasing. Every hour an older adult dies as the result of a fall.
• The total costs for non-fatal falls among Minnesotans 65 years of age
and older were $162 million for hospital charges and $20.4 million for
emergency department charges in 2005.
• Hip fractures are among the most serious fall-related injuries. Twenty
percent die within the first year post-fracture, half
never regain their previous level of functioning, and many are unable to
live independently after their injury.
• Falls among the elderly are driving health care costs and significantly
impacting quality of life for our older adults.

What you can do –

⇒ Sign-up for the statewide falls prevention listserv. The listserv
is a vehicle to share information related to the falls prevention
initiative. To subscribe to the listserv, please visit:
http://mailman.stpaul.visi.com/mailman/listinfo/fallsprevention
⇒ Visit the Minnesota Falls Prevention Initiative website at
www.mnfallsprevention.org. The website contains more detailed
information related to conducting fall risk screenings and
assessments, implementing falls prevention interventions in your
community, linking community.
This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.
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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

As an attorney who handles nursing home abuse and neglect cases, I frequently see situations where residents do not receive the necessary nourishment and hydration required for sustaining health. Both state and federal regulations require that a nursing home provide adequate food and water pursuant to the following statutes:

Nutrition The nursing home must maintain acceptable parameters of nutritional status. (42 CFR § 483.25 (i))
Based on a resident’s comprehensive assessment, the facility must ensure that a resident:
(1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident’s clinical condition demonstrates that this is not possible; and
(2) Receives a therapeutic diet when there is a nutritional problem. (42 CFR § 483.25 (i))
Hydration The nursing home must provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR § 483.25 (j))
The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.

Of all the forms of nursing home abuse and neglect failure to provide adequate nourishment and hydration is one of the easiest to prevent with staff attention to the intake provided to the resident and staff having enough time to ensure that a resident is able to eat the meals provided.

Nursing homes are also mandated by state and federal regulations to timely report any change in a resident’s condition to the treating physician and family, pursuant to 42 CFR § 483.10.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

Signs Of Nursing Home Abuse

There are a number of different warning signs that could suggest that a nursing home is not providing adequate health care. In many cases, these warning signs will go unnoticed until it is too late. In other cases, these warning signs are simply brushed off by family members and friends. And, in even more cases, these warning signs are hidden behind closed doors. Whatever the case, it is important to be on the lookout for any signs of nursing home abuse or neglect. Nursing homes are supposed to be a place of support and security; however, this is not always the case. If you notice any warning signs that a nursing home is not up to standard, then it is important to contact a elderly abuse attorney immediately.

Physical Signs of Nursing Home Abuse

Physical signs can often be a great indicator of abuse. If your loved one is showing any of these symptoms, it could be a sign of neglect or abuse:

• Bed sores/ pressure sores
• Torn clothing or personal items
• Constant falls and traumas
• Excessive weight loss or weight gain
• Fecal/urine smells
• Pale complexion
• Lack of personal hygiene
• Presence of dirt, lice, fleas, etc.
• A change in personality

Keep in mind that abuse can also occur without any shred of physical symptoms. It is also important to remember that emotional abuse be just as common and devastating to the nursing home victim.

Signs of Nursing Home Neglect or Inadequate Care

There are a number of cases where the neglect or abuse is not as easy to recognize as the physical signs. One of the best ways to understand if a nursing home is providing adequate care is to understand the Minnesota Nursing Home Resident Bill of Rights. Some of the signs that neglect or abuse is taking place may include:

• Lack of staff members and lack of service provided
• Rudeness of staff members
• Lack of entertainment facilities
• Lack of patient morale
• Lack of proper diet, nutrition and lifestyle facilities
• Lack of proper heating or cooling
• Lack of proper hygienic cleaning

If you notice any of the following, then it is important to discuss your concerns with your loved one as well as with an experienced nursing home abuse lawyer.

The Minnesota Eldercare Rights Alliance has identified the most common types of elder abuse and the signs to look for each type

Self-Neglect

poor hygiene, not taking prescribed medications, house

becoming dirty or hoarding behavior is evident, utilities shut off

due to lack of payment. Often self-neglect can be signs of

other abuse such as financial exploitation.

Physical Abuse

bruises or injuries that don’t seem consistent with explanation,

broken furniture or possessions (evidence of an altercation), an

elder’s report of being hit, slapped or abused.

Financial Exploitation

sudden unawareness of financial matters, bills not being paid

even though elder should have resources to pay bills,

unexplained transfer of assets or possessions, an elder’s report

of being exploited.

Emotional

crying spells, becoming withdrawn or agitated, sudden changes

in behavior, an elder’s report of abuse

wounds or injuries not healing or being treated, medications or

other prescriptions not being filled, bills not being paid (risking

eviction from home), an elder’s report of maltreatment.

Sexual Assault

sudden withdrawal or isolation, bruising around genital area, an

elder’s report of assault or rape.

For a copy of a brochure regarding elder abuse from Eldercare Rights Alliance

Contact Us For A Free Consultation

Realizing that your loved one may be in danger and may not be receiving the utmost quality of care can make you feel anger, helpless and confused. You most likely will not know what to do or who to turn to for help with this injustice. This is why it is so important to contact a qualified elder home abuse lawyer to help assess the situation and work on the case.

If you or a loved one has suffered an injury from neglect 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@guardianlegalservices.net or call Ken at 612-743-9048.

As an attorney who handles nursing home abuse and neglect cases the most frequent form of injury I see in nursing homes and assisted living facilities are fall injuries. Many falls with fractures unfortunately result in death. It is imperative that every effort is made to protect residents from falling in the first place. The most common ways the falls occur is from improper transfers or being left alone on a toilet.

In my experience, falls resulting from being left unattended are foreseeable and preventable. A person is usually left unattended due to staffing levels, and the aide or nurse is trying to accomplish the toileting of one resident while attending to some other task.

The Fall Prevention Center of Excellence has created many helpful resources for those interested in fall prevention. These resources include newsletters, fact sheets, and technical assistance briefs.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

Sexual, Physical and Psychological Abuse of Nursing Home Residents

Sexual abuse usually happens behind closed doors. The criminal will often attack at night and will leave the victim feeling disgusted and ashamed. Furthermore, sexual abuse often comes with mental abuse as well. Name calling, treating the residents in a demeaning or threatening manner and harassment all fall under the category of verbal abuse. In many instances, a resident will be intimated by verbal abuse and will not report the sexual or physical abuse due to fear and shame or a fear that they will not be believed. Resident’s are also fearful that if they cause a problem they will be forced out of the facility and have nowhere to go. Be on the lookout for the following signs and symptoms of sexual abuse in a resident:

• Any physical cuts, scratches or bruising
• Signs of depression or anxiety
• Extreme fear or nervousness, especially when an employee is present
• Isolation
• Mood changes
• Weight loss or weight gain

Sexual abuse can lead to severe emotional complications including low self esteem, suicidal thoughts and depression. It is critical for the welfare of all residents that sexual abuse be stopped immediately.

What to Do if You Suspect Sexual Abuse

If you suspect that your loved one is being abused sexually, then you need to speak to them about it. Often times the resident will feel so ashamed that they will deny anything is wrong. Look for the signs of nursing home sexual and mental abuse, as listed above, and report any suspicious behavior to the authorities. By contacting an ensuring nursing home abuse lawyer, you are ensuring that all residents, both present and future, are protected against this criminal behavior.

In many cases, nursing home sexual abuse occurs because the nursing staff has not been givne a proper background check during the hiring process. Most nursing homes are understaffed with high rates of turnover thus the nursing home may often have a need to overlook hiring protocols designed to protect the safety of the residents. It is the law that all nursing staff have a criminal background check but this is often waived due to the high demand for staff. In many instances, a nurse with a history of abuse will still be able to find work in nursing homes or other form of elder care facility, despite having been placed on a watch list. Often times sexual abuse of nursing home residents is a preventable form of neglect if the facility management would have the required background checks for new employees as well as enough staff to ensure the residents are well supervised, reducing the liklihood of sexual assaults.

Abuse and Neglect in Nursing Homes

Sometimes it is difficult to determine if there was an incident of abuse or neglect suffered by a nursing home resident. Due to the complex nature of the care needs of many residents it is not always immediately evident if a person’s condition is the result of declining health or a disease process or due to either physical abuse or more subtly neglect.

Federal Regulations Prohibit Abuse and Neglect of Nursing Home Residents

42 CFR § 483.10 Resident rights.

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights:

(a) Exercise of rights. (1) The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.

(2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.

(3) In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under State law to act on the resident’s behalf.

(4) In the case of a resident who has not been adjudged incompetent by the State court, any legal-surrogate designated in accordance with State law may exercise the resident’s rights to the extent provided by State law.

Minnesota law also prohibits abuse and Neglect of Nursing Home Residents

Vulnerable Adult’s Act Minnesota Statute § 626.5572, Subd. 2. Abuse.

“Abuse” means:

(a) An act against a vulnerable adult that constitutes a violation of, an attempt to violate, or aiding and abetting a violation of:
(1) assault in the first through fifth degrees as defined in sections 609.221 to 609.224;
(2) the use of drugs to injure or facilitate crime as defined in section 609.235;
(3) the solicitation, inducement, and promotion of prostitution as defined in section 609.322; and
(4) criminal sexual conduct in the first through fifth degrees as defined in sections 609.342 to 609.3451.
A violation includes any action that meets the elements of the crime, regardless of whether there is a criminal proceeding or conviction.
(b) Conduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:
(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;
(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening;
(3) use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and
(4) use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825.
(c) Any sexual contact or penetration as defined in section 609.341, between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility.
(d) The act of forcing, compelling, coercing, or enticing a vulnerable adult against the vulnerable adult’s will to perform services for the advantage of another.
(e) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult or a person with authority to make health care decisions for the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C or 252A, or section 253B.03 or 524.5-313, refuses consent or withdraws consent, consistent with that authority and within the boundary of reasonable medical practice, to any therapeutic conduct, including any care, service, or procedure to diagnose, maintain, or treat the physical or mental condition of the vulnerable adult or, where permitted under law, to provide nutrition and hydration parenterally or through intubation. This paragraph does not enlarge or diminish rights otherwise held under law by:
(1) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an involved family member, to consent to or refuse consent for therapeutic conduct; or
(2) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct.
(f) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult, a person with authority to make health care decisions for the vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the vulnerable adult in lieu of medical care, provided that this is consistent with the prior practice or belief of the vulnerable adult or with the expressed intentions of the vulnerable adult.
(g) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult, who is not impaired in judgment or capacity by mental or emotional dysfunction or undue influence, engages in consensual sexual contact with:
(1) a person, including a facility staff person, when a consensual sexual personal relationship existed prior to the caregiving relationship; or
(2) a personal care attendant, regardless of whether the consensual sexual personal relationship existed prior to the caregiving relationship.

Minnesota Statute § 626.5572, Subd. 9. Financial exploitation.

“Financial exploitation” means:

(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult’s will to perform services for the profit or advantage of another.
(c) Nothing in this definition requires a facility or caregiver to provide financial management or supervise financial management for a vulnerable adult except as otherwise required by law.

“Initial disposition” is the lead agency’s determination of whether the report will be assigned for further investigation.

Minnesota Statute § 626.5572, Subd. 15. Maltreatment.

“Maltreatment” means abuse as defined in subdivision 2, neglect as defined in subdivision 17, or financial exploitation as defined in subdivision 9.

Minnesota Statute § 626.5572, Subd. 17. Neglect.

“Neglect” means:

(a) The failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to, food, clothing, shelter, health care, or supervision which is:

(1) reasonable and necessary to obtain or maintain the vulnerable adult’s physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult; and

(2) which is not the result of an accident or therapeutic conduct.

(b) The absence or likelihood of absence of care or services, including but not limited to, food, clothing, shelter, health care, or supervision necessary to maintain the physical and mental health of the vulnerable adult which a reasonable person would deem essential to obtain or maintain the vulnerable adult’s health, safety, or comfort considering the physical or mental capacity or dysfunction of the vulnerable adult.

(c) For purposes of this section, a vulnerable adult is not neglected for the sole reason that:

(1) the vulnerable adult or a person with authority to make health care decisions for the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C, or 252A, or sections 253B.03 or 524.5-101 to 524.5-502, refuses consent or withdraws consent, consistent with that authority and within the boundary of reasonable medical practice, to any therapeutic conduct, including any care, service, or procedure to diagnose, maintain, or treat the physical or mental condition of the vulnerable adult, or, where permitted under law, to provide nutrition and hydration parenterally or through intubation; this paragraph does not enlarge or diminish rights otherwise held under law by:

(i) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an involved family member, to consent to or refuse consent for therapeutic conduct; or

(ii) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct; or

(2) the vulnerable adult, a person with authority to make health care decisions for the vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the vulnerable adult in lieu of medical care, provided that this is consistent with the prior practice or belief of the vulnerable adult or with the expressed intentions of the vulnerable adult;

(3) the vulnerable adult, who is not impaired in judgment or capacity by mental or emotional dysfunction or undue influence, engages in consensual sexual contact with:

(i) a person including a facility staff person when a consensual sexual personal relationship existed prior to the caregiving relationship; or

(ii) a personal care attendant, regardless of whether the consensual sexual personal relationship existed prior to the caregiving relationship; or

(4) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult which does not result in injury or harm which reasonably requires medical or mental health care; or

(5) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult that results in injury or harm, which reasonably requires the care of a physician, and:

(i) the necessary care is provided in a timely fashion as dictated by the condition of the vulnerable adult;

(ii) if after receiving care, the health status of the vulnerable adult can be reasonably expected, as determined by the attending physician, to be restored to the vulnerable adult’s preexisting condition;

(iii) the error is not part of a pattern of errors by the individual;

(iv) if in a facility, the error is immediately reported as required under section 626.557, and recorded internally in the facility;

(v) if in a facility, the facility identifies and takes corrective action and implements measures designed to reduce the risk of further occurrence of this error and similar errors; and

(vi) if in a facility, the actions required under items (iv) and (v) are sufficiently documented for review and evaluation by the facility and any applicable licensing, certification, and ombudsman agency.

(d) Nothing in this definition requires a caregiver, if regulated, to provide services in excess of those required by the caregiver’s license, certification, registration, or other regulation.

(e) If the findings of an investigation by a lead agency result in a determination of substantiated maltreatment for the sole reason that the actions required of a facility under paragraph (c), clause (5), item (iv), (v), or (vi), were not taken, then the facility is subject to a correction order. An individual will not be found to have neglected or maltreated the vulnerable adult based solely on the facility’s not having taken the actions required under paragraph (c), clause (5), item (iv), (v), or (vi). This must not alter the lead agency’s determination of mitigating factors under section 626.557, subdivision 9c, paragraph (c).

Minnesota Statute § 626.5572, Subd. 21. Vulnerable adult.

(a) “Vulnerable adult” means any person 18 years of age or older who:

(1) is a resident or inpatient of a facility;

(2) receives services at or from a facility required to be licensed to serve adults under sections 245A.01 to 245A.15, except that a person receiving outpatient services for treatment of chemical dependency or mental illness, or one who is served in the Minnesota sex offender program on a court-hold order for commitment, or is committed as a sexual psychopathic personality or as a sexually dangerous person under chapter 253B, is not considered a vulnerable adult unless the person meets the requirements of clause (4);

(3) receives services from a home care provider required to be licensed under section 144A.46; or from a person or organization that exclusively offers, provides, or arranges for personal care assistant services under the medical assistance program as authorized under sections 256B.04, subdivision 16, 256B.0625, subdivision 19a, 256B.0651, 256B.0653 to 256B.0656, and 256B.0659; or

(4) regardless of residence or whether any type of service is received, possesses a physical or mental infirmity or other physical, mental, or emotional dysfunction:

(i) that impairs the individual’s ability to provide adequately for the individual’s own care without assistance, including the provision of food, shelter, clothing, health care, or supervision; and

(ii) because of the dysfunction or infirmity and the need for care or services, the individual has an impaired ability to protect the individual’s self from maltreatment.

(b) For purposes of this subdivision, “care or services” means care or services for the health, safety, welfare, or maintenance of an individual.

According to Nursing Home Patient Bill of Rights, Minnesota Statute § 144.651, Subd. 14. Freedom from maltreatment.

Patients and residents shall be free from maltreatment as defined in the Vulnerable Adults Protection Act.
“Maltreatment” means conduct described in section 626.5572, subdivision 15, or the intentional and nontherapeutic infliction of physical pain or injury, or any persistent course of conduct intended to produce mental or emotional distress. Every patient and resident shall also be free from nontherapeutic chemical and physical restraints, except in fully documented emergencies, or as authorized in writing after examination by a patient’s or resident’s physician for a specified and limited period of time, and only when necessary to protect the resident from self-injury or injury to others.

If you or a loved one has suffered an injury from neglect 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@mnnursinghomeneglect.com, or call Ken at 612-743-9048.

Minnesota CIVJIG 91.75 sets forth the measure of damages in a wrongful death claim in Minnesota. The following is a copy an example of the questions a jury is asked pertaining to what damages – which usually means money should the next-of-kin of the deceased should receive to compensate them for the wrongful death of their family member.

Money Value of Damages
When you consider damages for claimant (s), determine an amount of money that will fairly and adequately compensate (claimant)(s) for the losses (he) (she) (they) suffered as the result of this death. You should consider what (name of deceased) would have provided to the (claimant)(s) if (he) (she) (they) had lived.

Factors to consider:

You should consider:
1. (His) (Her) contributions in the past
2. (His) (Her) life expectancy at the time of (his) (her) death
3. (His) (Her) health, age habits, talents, and success
4. (His) (Her) occupation
5. (His) (Her) past earnings
6. (His) (Her) likely future earning capacity and prospects of bettering (himself) (herself) had (he) (she) lived
7. (His) (Her) personal living expenses (cost of supporting the child)
8. (His) (Her) legal obligation to support the (surviving spouse) (next of kin) and the likelihood that (he)
9. All reasonable expenses incurred for a funeral and burial (etc.), and all reasonable expenses for support due to (his) (her) last sickness, including necessary medical and hospital expenses incurred after and as a result of the injuries causing death
10. [The probability of (name of decedent)’s paying the debt owned by ______________ to ______________]
11. The counsel, guidance, and aid (he) (she) would have given (claimant) (s)
12. [The advice, comfort, assistance, and protection that (name of decedent) would have given if (he) (she) had lived.]

Lost time together:

Decide the length of time those related might be expected to survive together. You should compare the life expectancy of (name of decedent) with the life expectancy of each claimant. Take into account only the amount of time the two being compared would be expected to survive together. Base your money damages for each claimant on the shorter life expectancy of the two being compared.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

INTRODUCTION TO MEDICAL MALPRACTICE

Why is a claim against a long-term care or home care provider

considered medical malpractice?

1. Minnesota Law considers claims against any “medical professionals” to be medical malpractice claims.

2. Claims against a “Health Care Provider” include “a physician, surgeon, dentist, occupational therapist, other health care professionals as defined in section 145.61, hospital, or treatment facility.” (Minn. Stat. § 541.076; See Attachment F).

3. “Nursing home” and “professional services” are specifically included in 145.61, subd. 4:

“Health care” means professional services rendered by a professional or an employee of a professional and services furnished by a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings.

4. Minn. Stat. § 145.682 – Expert review required as follows:

“health care provider” means a physician, surgeon, dentist, or other health care professional or hospital, including all persons or entities providing health care as defined in section 145.61, subdivisions 2 and 4, or a certified health care professional employed by or providing services as an independent contractor in a hospital.

5. Case law also supports the inclusion of claims against and long-term and home care provider as medical malpractice claims.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.   In addition to providing related information this blog may also be considered an advertisement for legal services.

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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com , or call Ken at 612-743-9048.

As an attorney who handles nursing home abuse and neglect cases I would find the recording from a Granny Cam to be helpful, but would also want to balance the privacy rights of the resident in the nursing home. Overall I believe knowing the there is a camera watching would lead to better care and could document many of the unexplained injuries which can occur in nursing homes.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

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 LaBore, directly please send an email to klabore@MNnursinghomeneglect.com , or call Ken at 612-743-9048.