Each year, I seem to handle a larger volume of cases involving nursing home and hospital nursing negligence. The more I involve myself with these sorts of cases, the more cases get sent to me by folks who learn of my interest and proficiency in handling them. In addition to being the single largest growth area of my practice, it is also one of the most meaningful and personally rewarding areas of my practice.
With Baby Boomers approaching age 70, and medical science prolonging life, the single largest healthcare crisis America faces in the next two decades has nothing to do with Obamacare. In my view, the single most compelling healthcare crisis is how we provide care and treatment for the influx of elderly people as they enter the assisted living phase of their lives. The demands on assisted living and nursing home care facilities have never been greater. At the same time, the nursing home industry as a whole is enjoying higher profits by warehousing elderly people, and by short staffing facilities with unqualified caretakers.
The natural result seems to be that America's "Greatest Generation" (folks who were adults during World War II), as well as their children, "the Baby-Boomers," are more likely to be victims of neglect of abuse. Consequently, we file more nursing home and hospital neglect lawsuits today than we ever have. With the alarming volume of these cases entering our office, over the next decade, we may soon have little time to focus on anything else except these abuses, injuries, and neglectful killings of our nation's seniors by understaffed, incompetent, and greedy nursing homes.
We have posted previous articles detailing the primary areas of neglect that result in nursing home or hospital nursing abuse. But, with few exceptions, our cases are categorized into two prevailing areas: Bed Sores and Bad Falls. Both generally result in life threatening and deadly outcomes.
This article is designed to help the families of those most vulnerable to elderly neglect understand the 4 Step Approach we utilize in bringing nursing home and hospital nursing negligence cases to court. This is a winning methodology that assures not only that your case gets to court, but once there, that your case will resolve favorably. Please use this information if it is helpful to you and your family.
STEP 1: Gather the Records … and I mean ALL the records
If you suspect that a loved one has been the victim of neglect or abuse, nursing home and hospital records, when they haven't been destroyed or altered, invariably tell the whole story of neglect and nursing misconduct.
So, before you contact the Department of Social Services, raise your voice to any administrator at the facility, or retain an attorney, I recommend that you attempt to obtain the applicable medical records. You will be surprised what these facilities will hold back if you don't include the right words in your request. You will also be surprised by how quickly medical facilities will alter or destroy records to avoid the consequences of their negligence if you do not take prompt action to get these records on your own.
Request all records regarding the care of your loved one including, but not limited to, "the medical chart," "the resident file, both paper and electronic," "all nursing notes," "the entire nursing chart," "all nutritionist assessment and records," "all occupational therapy assessment and records," and "any file both electronic and paper that contain" your loved ones name in it for any reason. This request should also include the facility's "own investigative records regarding the incident."
Although this might sound paranoid, you have no idea of the lengths these homes and hospitals will go through to conceal their misconduct. I do. That's why the timing of your request and the words you use are critical and need to be as inclusive as possible.
STEP 2: File a Complaint with Adult Protective Services
No, this is not a lawsuit. We'll get there soon. Before filing a lawsuit, I suggest utilizing the Adult Protect Services in your county to help investigate the incident. This is an agency set up through the Colorado Department of Human Services that is run at the county level. When negligence occurs at a hospital, this agency cannot help you. However, when a nursing home is involved, their ability to investigate and produce a readily accessible report is often times the "last nail in the nursing home's coffin." To request an investigation, you will need to call the appropriate division of the county where the nursing home is located. Please click on the hyperlink above to see a full listing of appropriate phone numbers.
I suggest you be aggressive and proactive in assisting this agency with their investigation by sharing your obtained medical records with them. These agencies hold nursing homes to very high standards. In my experience, these standards are almost never satisfied by the nursing home under investigation. Accordingly, the agency nearly always concurs with the conclusion that your loved one was mistreated.
Once armed with the findings of the investigation, it isn't just you or me or some hired expert saying that negligence has occurred, it's the State of Colorado. This independent evaluation of the situation can go a long way in holding these nursing homes responsible for their negligence.
STEP 3: Seek Legal Counsel
While Adult Protective Services ("APS") investigates your claim, it makes little sense to retain a lawyer until the investigation is completed. These investigations are so thorough and comprehensive that any lawyer worth his salt will patiently await the outcome of the state's investigation before bringing a lawsuit.
Frankly, if the attorney you are going to hire seems uninterested in what the APS investigation uncovers, then you are probably not talking to the right lawyer. Experience has taught me that the APS findings and their means of investigation reach areas and levels of discovery that we attorneys can only dream of reaching.
However, what you will find is that once the APS investigation is completed, short of fines or other administrative consequences, the APS does NOT attempt to financially right the wrongs caused to the patient or the family. That's where a lawyer like me comes into play. Unlike the State agency, attorneys have access to the courts. It is only through the civil legal system that victims of nursing home and hospital negligence can receive justice and compensation for the mistreatment that they suffered at the hands of a nursing home or medical facility.
STEP 4: Seek Out Industry Experts
This step is generally done by your attorney. However, whether you have counsel or not, Colorado requires you to confer with experts early in a nursing malpractice case. Additionally, all of your obligations to properly retain experts and bring the lawsuit must be accomplished within 2 years of the date of the injury. Two years may seem like a long period of time, but, when you consider what must be completed BEFORE a case can be properly readied for a lawsuit, two years can blow by.
The Industry Expert's job is to carefully comb through the records, including the APS investigation, and ultimately reach a conclusion that the nursing homes actions or omissions were a deviation from the appropriate standard of nursing care.
Essentially, a professional within the industry, must go on record and say, "yes, this was an avoidable screw up, which should never have happened if these nurses were doing their job." You simply can't get into court without this powerful professional opinion of misconduct.
There is a methodology to finding out the truth about whether negligence caused injury to your loved one in a hospital or nursing home. Your accessibility to the courthouse is dependent on careful compliance with this winning 4 Step Approach.
At Anderson, Hemmat & McQuinn, we are committed to helping your family if a loved one has been the victim of nursing home and hospital nursing negligence. If you have questions about the 4 Step Approach, please call and speak to one of our attorneys today.