Compensation may be available to persons who have suffered a personal injury (physical and/or emotional) that is the result of negligence in a nursing home. Not all acts of negligence will result in an award of compensation. The law varies State by State, however generally speaking, the severity of the breach and the nature, extent and severity of the injury are important factors in determining whether a person reaches various statutory thresholds entitling them to compensation.
If you are unsure as to whether you or your loved one can claim compensation, it is best to seek legal advice from an experienced nursing home neglect solicitor who specialises in personal injury compensation and elder law. Strict time limits apply in making a compensation claim, therefore do not delay in seeking legal advice.
Nursing home residents are entitled to the same level of health care as any other Australian citizen. However, recent reports allege that some nursing homes are failing to provide appropriate medical treatment and nursing care.
Common examples of medical errors and negligence occurring in nursing homes include :-
Medical professionals and nursing staff who attend to nursing home residents have a duty of care to ensure that a proper standard of treatment is provided. Medical incompetence resulting in a breach of duty of care may entitle the patient to claim compensation for negligence.
Many of these injuries are preventable, and are often the result of inadequate supervision or attention from staff for residents who need assistance with feeding, personal care and mobility. Some injuries are the direct result of physical, sexual or emotional abuse inflicted by other residents or even staff. Injuries may also be suffered due to medication errors, diagnostic errors and inadequate medical treatment.
Residential, retirement and nursing home mistreatment includes acts of abuse or omissions (neglect), resulting in harm or threatened harm to the health or welfare of a person. Elder abuse and neglect may be intentional or unintentional, and can include physical, sexual, and emotional/psychological abuse, neglect, self-neglect, and abandonment, as well as financial or material exploitation, discrimination, medical errors, falls and other injuries.
User Rights Principles made under the Aged Care Act 1997 state that each resident of a residential care service has the right :-
Unfortunately, these principles are often not adhered to, and residents of residential, retirement and nursing homes are subjected to horrendous abuse, mistreatment and neglect with lasting physical and psychological damage. Breaches of these principles should be reported to the relevant government authorities. Residents can also pursue civil rights by making compensation claims for damages.
This is where we can help. Our nursing home neglect solicitors practice in the areas of elder abuse, negligence and personal injury compensation. If your loved one has suffered from neglect or abuse whilst in a residential, retirement or nursing hom, and you wish to find out what their legal rights are with regard to compensation, then contact us today for a referral to a solicitor at no cost.
Another major problem resulting from nursing home neglect is the presence of bed sores or pressure sores. These are sores in the skin, usually in the elbows, knees, ankles, buttocks and feet that occur when a resident is left in one position for too long. The skin rubs against an abrasive surface, such as a starched bed sheet, and it begins to open up. Bed sores can happen in sitting residents (on the buttocks) as well.
The only treatment for bed sores that works is to prevent them from occurring in the first place. This means that aides have to turn and change residents positions frequently so the skin remains intact. Devices can be used that protect the heel and ankles from rough surfaces and that cradle the elbow in case of abrasion. These can be used on the most high risk patients. Once a bed sore or pressure ulcer occurs, it is difficult to treat and it can often get infected. Patients with infected pressure sores from neglect can die of sepsis secondary to the infected pressure sore.
A bed sore (or pressure ulcer) is damage that occurs on the skin and underlying tissue. Pressure ulcers are caused by: pressure – the weight of the body pressing down on the skin; shear – the layers of the skin are forced to slide over one another or over deeper tissues, for example when you slide down, or are pulled up a bed or chair; and friction – rubbing the skin.
Pressure sores usually develop on areas where there is bony prominence, such as the buttocks, back of the head, heel, hip, elbow, ankle, shoulder, back. Signs of a pressure sore include discoloured skin (red, blue or purple patches), blisters, swelling, open wound, patches of hard skin, areas of hot skin, and areas of cool skin.
People most at risk of developing pressure sores are those who have limited mobility, they have problems changing positions without assistance, cannot feel pain in parts of their body, have spinal cord injuries such as paraplegia or quadriplegia, people who are ill and bedridden.
Nursing home staff must assess your risk of developing bed sores. Whilst prevention is best, prompt treatment of bed sores is necessary to prevent serious complications from developing. Severe pressure sores can result in infection, destruction of underlying muscle or bone structure, blood poisoning and even death. It is therefore important that staff take care in preventing and treating pressure sores in a timely manner.
Residents of nursing homes are amongst our most vulnerable, and deserve the best of care. Unfortunately, evidence suggests that the standard of nursing homes in Australia is in decline. According to a recent report, in 2008-09 the Department of Health and Ageing received notification of 1,411 alleged reportable assaults. Of those, 1,121 were recorded as alleged unreasonable use of force, and 272 as alleged unlawful sexual contact and 18 as both. Physical assaults have increased by more than 50 per cent and sexual assaults by 36 per cent, in the last 12 months, The Federal Health Minister Nicola Roxon stated “"I think this is a horrifying report,” (Source: SMH, 28.10.2010).
Given these alarming statistics, it is not surprising that Australians are seeking legal advice regarding abuse and neglect suffered by their loved ones in nursing homes. In many cases, the physical and psychological injuries suffered by the victim may result in awards of compensation for pain and suffering and related expenses.
Senior citizens are particularly vulnerable to falls due to changes associated with ageing such as degrading musculoskeletal system, gait changes, sensory changes, general weakness, medication side-effects such as dizziness, osteoporosis, dementia, arthritis. Mobility and risk of a fall should be assessed at the time that a care plan is drawn, and reviewed as necessary.
Sometimes a fall can be the result of negligence. Examples of when this might occur include :-
- slippery or wet floors
- inadequate lighting
- hazardous or unsafe premises
- lack of bed rails and improper bed height
- failure to properly train staff in lifting and handling techniques
- difficulties in moving patients due to under staffing
- failure of staff to adequately monitor and supervise residents
- poor nutrition and dehydration resulting in physical weakness
- call buttons not working, or calls not being responded to at all due to inadequate staffing
There are usually a number of physical and psychological effects that occur as a result of a fall, such as bone fractures (particularly hip fractures which can be excruciatingly painful, requiring surgery), bruising and swelling, decreased physical functioning, increased fear of falling, decreased confidence, depression and anxiety, and an increased sense of helplessness.
Residents often have many health problems that need attention. Diabetics for example, need to have regular foot care, eye exams on an annual basis and regular blood sugar testing. The doctor will usually set an order as to how often blood sugar testing needs to be done. One area of neglect is to fail to check a diabetics feet for foot ulcers and failing to check their blood sugar on a regular basis.
Resident's medications must be managed carefully. They must receive their medications at the right time, at the right doses, and it must be the correct medication. Errors with medication can be common depending on the methods used to dispense medications. Patients can miss a dose of medication or receive twice as much medication as necessary, resulting in untoward side effects.
Patients can get medications at the wrong time, rendering them less effective. They can also get the wrong medication or an entire set of medications that were intended for another resident. This can lead to serious complications. Medication errors can be a one-time thing or can be a problem lasting several weeks before it is discovered by staff or the pharmacist. Medication errors must be documented and relayed to the physician as soon as they are discovered so the doctor can make recommendations as to possible treatment.
Nutrition is another common error in care home services. Residents need a certain number of calories every day in order to maintain their weight and the food must be as nutritious as possible, given the restrictions some have due to conditions like diabetes, high blood pressure and lack of dentition. The food must be decided upon by a dietician familiar with resident conditions and each tray that goes out to the resident must be unique to their needs. Feeding everyone the same food for convenience means that some patients will get too many calories and some will get too few.
If the food that goes to the residents is not tailored to their dentition needs or to their needs to be fed due to dementia or other brain disease, such as a stroke, the resident will not be able to eat the food and will become malnourished. Worse yet, the resident can choke on food that he or she is not able to chew properly. This can result in death due to asphyxia and choking.
Residents without teeth need pureed food that can be easily swallowed and shouldn't have any seeds, nuts or food that they could choke on because they can't chew it up. In addition, the food should contain all the right food groups in the right amounts so that the overall nutritional status of the resident is within normal limits.
Water is something all residents need in the same quantities as regular people. The biggest problem is that not all nursing home residents can pour themselves a glass of water and drink it. In nursing home neglect, nursing aides forget to provide enough water by offering the residents something to drink every half hour to an hour or so. They need to drink in whatever way they can so that they don't get dehydrated. It may mean using a straw or having them chew on ice or sip a few sips at a time. Residents that are neglected and allowed to get dehydrated can get bladder infections and can suffer from fainting episodes.
Residents need to be toileted regularly or properly ptptected if they are incontinent. If they need to be toileted, it should be done on a regular basis so that they don't have an opportunity to have accidents. If they are incontinent, the protection needs changing on a regular basis so that they don't suffer from chafing or ammonia burns from urine on their delicate skin for long periods of time. Stooling also needs to be managed with regular trips to the toilet if the resident can indicate the need to stool and the cleaning of soiled nappies as soon as possible is necessary.
Basic oral hygiene needs to be addressed on a regular basis. This means the residents need denture cleaning if at all possible on a daily or twice daily basis and residents who have teeth need to have their teeth brushed or be assisted in brushing their teeth twice daily. Residents who are neglected in this fashion risk the loss of teeth, damage to dentures and dental or oral infections.
Other kinds of grooming need to be addressed at least daily, including the brushing of hair, the changing of clothing, especially soiled clothing and the cleaning of eye glasses. Residents who are unkempt reflect badly on the nursing facility and are generally unhappier and smell worse than residents who are taken care of in the personal realm.
Residents need care in the area of safety. For example, if a resident is a wanderer, he or she could wander outside of the facility or fall down some stairs if these areas aren't protected. A resident who falls down the stairs can die from his or her injuries and a resident who wanders out of the facility can die of exposure or get into a dangerous situation, such as walking in heavy traffic. This means that all stairwells need doors to protect the resident and these doors need to be locked with a key available only to staff members.
Residents may also need a 'wandering alarm' fitted around their ankle so that, if they cross a certain line, they can set off an alarm that alerts staff to get the resident before they escape. Not every resident needs a wandering alarm but those who are ambulatory or use a wheelchair well and have dementia are at the highest risk and should be monitored on a continuous basis. All exits to the nursing facility need to be protected via a wandering alarm. Failure to put a device on a roaming patient constitutes negligence that cannot be tolerated.
Medical neglect can happen in residents of care facilities. This includes not informing the doctor when a medical problem exists or ignoring an obvious health concern such as a UTI or pneumonia. These things can easily lead to further morbidity and death if the person isn't treated with antibiotics or other medications. In fact, urinary sepsis and pneumonia are two common causes of death in nursing home residents.
Restraints are a difficult topic of discussion among those who care for nursing home residents. Some believe that residents should be restrained in their beds, chairs and other places so as not to impact their risk of falls. Others point to the fact that nursing home residents often get tangled in restraints, get around restraints, and sometimes get injured with restraints more so than they would when off restraints. Many care facilities are going away from restraints for those very reasons and use things like mattresses on the floor or lap belts as reminders for residents not to get up and potentially fall. These care facilities believe it is negligence to use restraints on residents that only suffer worse injuries with the use of them.
The elderly have poor immune systems so that even small cuts can lead to infection and sepsis, leading to death from sepsis. Small cuts and abrasions must be treated with antibiotic ointment and covered at the very least so as to prevent a serious infection. Residents may fall sustaining abrasions and cuts that are minor to most people but can lead to a serious problem in the elderly.
This is especially true of diabetic residents who get infections from minor injuries quite readily. Staff must watch carefully for signs of infection in diabetics, including elevations in blood sugar, fever and purulence of the wound. The doctor must be notified of any injury that appears infected so that antibiotics can be prescribed to treat the injury.
Too many care facilities skimp on the treatment a doctor has ordered and too many doctors fail to authorize things like physical therapy and occupational therapy in order to maintain function in the elderly. They feel that, because they are elderly, they are wasting services meant for younger people. In fact, the elderly respond nicely to things like physical therapy and occupational therapy and it not only prolongs their life, it enhances the life they have left.
Emotional neglect is something that can't always be seen but it shows up in depression, anxiety and other behaviors of the residents. Residents are human beings that need care and affection, if not from their relatives then from the people who care for them every day. Emotional neglect comes from overworked staff that cannot take the time out of their stressful day to attend to the residents emotional needs. The residents then become depressed or anxious, retreating to the isolation of their room and refusing to participate in activities the care home may have. When it gets to this point, they are severely in need of emotional attention—attention they won't get unless the staff recognizes the need and responds to it.
The key to ending nursing home neglect is quality communication between staff and patients. The problem is that many nursing home residents have poor communication skills or cannot talk at all. This means that staff must be aware of cues that a resident is unhappy or in pain because of something being done to them, even if what’s being done is normal cares. The silence of residents unfortunately means that emotional and physical abuse is not being reported to anyone that can do anything about it and residents are both neglected and actively abused.
Some residents are afraid to talk to anyone about what's happening to them because they fear retaliation by the person who abuses them. They worry about not being believed or have problems communicating so it takes a great deal in order to get them to say anything so, unless an episode is witnessed by others, no one will find out, and the morbidity and mortality of these patients go up.
Nursing home negligence and residential care neglect amount to illegal and unlawful elder abuse. All types of nursing home or care home negligence are unacceptable to both the residents and staff. Nursing staff needs to be educated on the proper care of residents and the effects of nursing home abuse and neglect on the lives of these individuals, many of whom are elderly and require the 24 hour supervision of caring and attentive staff. If this cannot be accomplished due to abuse and neglect, there are legal options for patients and their families so this doesn't damage the psyches and bodies of the residents whose home and life can be threatened due to bad care. If you call the solicitors helpline or email our offices, a nursing home negligence solicitor will discuss your potential legal claim on the telephone without charge and without further obligation.