Top 10 Elder Law decisions of 2016

Below, in chronological order, is ElderLawAnswers’ annual roundup of the top 10 elder law decisions for the year just ended, as measured by the number of “unique page views” of our summary of the case.

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1. Medicaid Applicant’s Irrevocable Trust Is an Available Resource Because Trustee Can Make Distributions

An Alabama appeals court rules that a Medicaid applicant’s special needs trust is an available resource because the trustee had discretion to make payments under the trust. Alabama Medicaid Agency v. Hardy (Ala. Civ. App., No. 2140565, Jan. 29, 2016). To read the full summary, click here.

2. Trust Is an Available Asset Because Trustees Have Discretion to Make Distributions

A New York appeals court rules that a Medicaid applicant’s trust is an available asset because the trustees have discretion to make distributions to her. In the Matter of Frances Flannery v. Zucker (N.Y. Sup. Ct., App. Div., 4th Dept., No. TP 15-01033, Feb. 11, 2016). To read the full summary, click here.

3. Medicaid Applicant Who Transferred Assets in Exchange for Promissory Note May Proceed with Suit Against State

A U.S. district court holds that a Medicaid applicant who was denied Medicaid benefits after transferring assets to her children in exchange for a promissory note may proceed with her claim against the state because Medicaid law confers a private right of action and the Eleventh Amendment does not bar the claim. Ansley v. Lake (U.S. Dist. Ct., W.D. Okla., No. CIV-14-1383-D, March 9, 2016). To read the full summary, click here.

4. Mass. Court Bridles at Allegations in Request for Reconsideration in Irrevocable Trust Case

In a strongly worded response to a Medicaid applicant’s request for reconsideration of an unsuccessful appeal involving an irrevocable trust, a Massachusetts trial court strikes the applicant’s pleadings after it takes great exception to the tone of the argument.  Daley v. Sudders (Mass.Super.Ct., No.15-CV-0188-D, March 28, 2016). To read the full summary, click here.

5. Caretaker Exception Denied Because Child Did Not Provide Continuous Care

A New Jersey appeals court determines that the caretaker child exception does not apply to a Medicaid applicant who transferred her house to her daughter because the daughter did not provide continuous care for the two years before the Medicaid applicant entered a nursing home. M.K. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-0790-14T3, May 13, 2016). To read the full summary, click here.

6. State Can Place Lien on Medicaid Recipient’s Life Estate After Recipient Dies

An Ohio appeals court rules that a deceased Medicaid recipient’s life estate does not extinguish at death for the purposes of Medicaid estate recovery, so the state may place a lien on the property. Phillips v. McCarthy (Ohio Ct. App., 12th Dist., No. CA2015-08-01, May 16, 2016). To read the full summary, click here.

7. Attorney Liable to Third-Party Beneficiary of Will for Legal Malpractice

Virginia’s highest court rules that an intended third-party beneficiary of a will may sue the attorney who drafted the will for legal malpractice. Thorsen v. Richmond Society for the Prevention of Cruelty to Animals (Va., No. 150528, June 2, 2016). To read the full summary, click here.

8. Nursing Home’s Fraudulent Transfer Claim Against Resident’s Sons Can Move Forward

A U.S. district court rules that a nursing home can proceed with its case against the sons of a resident who transferred the resident’s funds to themselves because the fraudulent transfer claim survived the resident’s death. Kindred Nursing Centers East, LLC v. Estate of Barbara Nyce (U.S. Dist. Ct., D. Vt., No. 5:16-cv-73, June 21, 2016). To read the full summary, click here.

9. Irrevocable Trust Is Available Asset Because Medicaid Applicant Retained Some Control

New Hampshire’s highest court rules that a Medicaid applicant’s irrevocable trust is an available asset even though the applicant was not a beneficiary of the trust because the applicant retained a degree of discretionary authority over the trust assets. Petition of Estate of Thea Braiterman (N.H., No. 2015-0395, July 12, 2016). To read the full summary, click here.

10. NY Court Rules that  Spouse’s Refusal to Contribute to Care Creates Implied Contract to Repay Benefits

A New York trial court enters judgment against a woman who refused to contribute to her spouse’s nursing home expenses, finding that because she had adequate resources to do so, an implied contract was created between her and the state entitling the state to repayment of Medicaid benefits it paid on the spouse’s behalf. Banks v. Gonzalez (N.Y. Sup. Ct., Pt. 5, No. 452318/15, Aug. 8, 2016). To read the full summary, click here.

Feel Free to contact me to see how any of these decisions may affect your personal situation.

-Brian A. Raphan, Esq. 

How To Look Out for a Relative in a Nursing Home

The best ways to make sure your loved one gets the care that was promised.

Screen Shot 2015-12-16 at 9.31.06 PMvia U.S.News  Kurtis Hiatt

Finally, after ticking off the last item on a lengthy list of must-haves, you think you’ve found the best nursing home for your mom. The staff seems caring and professional. It’s comfortable, homey, and Mom is OK with it. She might even come to like her new life.

Screen Shot 2015-12-16 at 9.30.51 PM

But your work isn’t over. You want to make sure Mom gets the care you were told she’d receive—and the care she deserves. “The resident’s needs should be met by the facility, rather than having the patient meet the facility’s needs,” says Barbara Messinger-Rapport, director of the Cleveland Clinic‘s Center for Geriatric Medicine.

How do you make that happen?

What to ask
Start with your loved one. Isn’t Dad going to be your best source of information on his own care? “Ask the questions you would want to be asked if the roles were reversed,” says Cornelia Poer, a social worker in the Geriatric Evaluation and Treatment Clinic at Duke University Medical Center in Durham, N.C. Questions such as:

  • Are you comfortable?
  • Is anything worrying you?
  • Do you feel safe?
  • Do you feel respected?
  • If you need help and you push the call button, how long before somebody comes?
  • Have you gotten to know any of the other residents?
  •  Do you like the staff—and any staff member in particular?

That last point may seem small, but whether your loved one clicks with a specific caregiver is important, says David A. Nace, chief of medical affairs for UPMC Senior Communities, a long-term care network in western Pennsylvania that is part of UPMC-University of Pittsburgh Medical Center. It shows he’s making connections, growing in new social relationships. The trust that develops may also mean Dad takes his medication more reliably, or if behavioral issues stemming from dementia are a concern, it may be easier for one nurse than for another to manage them, says Nace.

Show interest and concern and identify major problems, but don’t go overboard. “Inquiries are important, but try to avoid turning every visit into an interrogation,” Poer says. “You will be able to determine if there are areas of concern in normal, everyday conversation.”

[Read: 9 Warning Signs of Bad Care.]

Some questions will be better directed at staff members, particularly if your loved one has a cognition problem such as dementia or Alzheimer’s disease. In the first days and weeks, the focus should be on the initial adjustment. Do Mom’s nurses see any signs of depression? Does she appear to be making the transition smoothly? If not, what, specifically, is being done to help her?

Then drill down to her day-to-day routine:

  • When is she up?
  • Are her meals appropriately prepared—soft or pureed food if she has trouble chewing, low in fat and salt if she has a heart condition?
  • Is she taking her medications when and as often as she should? (The timing of each medication should be documented.) If there’s been a consistent problem, how is that being addressed?
  • Is there a reason to change any of her medications?
  • Is she exercising or participating in other physical activities?
  • Is she social?

“I like to see if the patients are usually in their rooms,” says Susan Leonard, a geriatrician at Ronald Reagan UCLA Medical Center. “Not being in their rooms means they are participating in activities, dining, or in the hallway socializing with others, which may suggest a better social environment for residents.” But you’ll want to see for yourself whether empty rooms might only mean residents are parked on sofas and in wheelchairs elsewhere in front of TVs.

Don’t be afraid to broach more sensitive topics. If you were recently alerted of a behavioral issue or medical emergency, talk to both Mom and the staff to figure out whether it was handled properly. You want to know what the staff did and what changes in care they’ve made.

It’s helpful to have a main point of contact during the day’s various shifts. You should feel like you can call at any time, but Nace observes that it’s good to know up front what the best times are for getting general updates. And don’t settle for less than you need to know. If you don’t get an answer, head up the chain of command to a unit supervisor, assistant director, or director.

What to inspect
Getting a feel on your own for the overall environment goes a long way, says Audrey Chun, associate professor of geriatrics and palliative medicine at Mount Sinai Medical Center in New York. Are common areas, rooms, and residents’ clothes clean? What about lighting and temperature? These are especially important to older adults, says Poer. Does the room feel homelike? If you send cards, are they hanging on a bulletin board in the room?  If cards and drawings are up and Mom couldn’t put them up herself, that’s a great sign. “It means the staff took the time to do it for the resident,” Nace says. “The staff cared enough to do this.”

Look around. Do you see any safety hazards—a hanging TV that isn’t strapped down or blocked exits? What about bruises, such as on the upper arms where staff may have handled Dad too roughly? Watch the staff—are they affectionate, genuine, and helpful?

Use your nose. Are there odors in the hallways and rooms? “Yes, bowel movements happen—this is a long-established fact of life—but it should not be the thing that greets you every time you are in the hall,” says Nace.

Listen. Do you hear birds, music, laughter? Or do you hear creaky floors and clanging pipes? Constant small annoyances can affect a person’s mood and eventually her day-to-day demeanor.

How often to check in—and what to do if you can’t
Some homes have a “care conference” shortly after admission and then quarterly to give you and your loved one a regular time to talk with staff, says Nace. But stopping by on various days and at various times is smart. You can ensure Mom or Dad isn’t “overmedicated or spending time sitting in front of the TV,” says Messinger-Rapport. When you do check in, swing by the nurses’ station to signal to the staff that you’re actively involved in Dad’s care.  If distance keeps you apart, staff might be able to send you photos or videos of Dad or set up a videoconference with Dad and his caregivers. If you’re abroad, staff might be able to print out an email for Mom if she doesn’t have a computer, Nace says.

Better still, says Poer, “having someone on the ground to be your eyes and ears can be very useful.” Enlist a local family member or close friend. Or consider a case manager or ombudsperson to advocate for you and Mom.

What the staff needs from you
Make sure the home’s staff has a number where they can receive a prompt response if necessary. And while staff has a professional responsibility, your appreciation—particularly if someone worked with you to resolve a concern, and even if it meant you had to compromise—will go far. “Be respectful of the staff and their time; their job is very demanding,” Poer says.  Let the nurses and other caregivers into your and your loved one’s lives by sharing personality quirks, interests, preferences. But above all, stay optimistic about Dad’s future and his ability to accept and adjust to his new life. Flycasting for bass on the Susquehanna River, Nace’s dad’s longtime passion, faded into a treasured memory after he moved into a nursing home, traded in for newfound pastimes: baking and painting.

[See our other posts on legal issues and nursing homes]

Regards,

Brian

http://www.RaphanLaw.com

Seeking long-term care? How your local Ombudsman can help…

    • OMBUDSMAN: What is the Program/Service   Via www.aging.ny.gov

      Educating, empowering and advocating for long-term care residents. The Ombudsman Program is an effective advocate and resource for older adults and persons with disabilities, who live in nursing homes, assisted living and other licensed adult care homes. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life.
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      The Ombudsman Program advocates for residents by investigating and resolving complaints made by or on behalf of residents; promoting the development of resident and family councils; and informing government agencies, providers and the general public about issues and concerns impacting residents of long-term care facilities.

      Mandated by the federal Older Americans Act, in New York the Ombudsman Program is administratively housed at the State Office for the Aging (NYSOFA), and provides advocacy services through a network of 36 local programs. Each local Ombudsman Program is lead by a designated ombudsman coordinator who recruits, trains and supervises a corps of volunteers, currently more than 1000 statewide. These certified volunteers provide a regular presence in nursing homes and adult care facilities are available to help residents with questions and concerns about their care and living conditions.

      Conversations with the ombudsman are confidential and residents or other persons can register a complaint anonymously. Ombudsmen handle a wide variety of complaints involving quality of care, residents’ rights, discharge, medications, lost or stolen items, dietary issues, and quality of life concerns. Ombudsmen can also provide information and consultation about how to choose a facility and how to pay for long-term care.

    • Who is Eligible?

      While the program serves all residents of licensed long-term care facilities regardless of age.

    • Is There a Cost?

      Ombudsman services are provided free of charge.

READ ABOUT PROTECTING YOUR ASSETS FOR YOUR FAMILY WHILE GETTING THE CARE YOU NEED

Appeals Court Upholds Class Certification of Nursing Home Residents Seeking Community-Based Alternatives

A U.S. Court of Appeals upholds a district court ruling that granted class certification to a group of disabled nursing home residents who complained of a lack of Medicaid-funded community-based alternatives.  In re District of Columbia, (D.C. Cir., No. 14-8001, June 26, 2015).

 

The plaintiffs, a group of disabled nursing home residents receiving Medicaid-funded long term care, sued the District of Columbia for allegedly violating its obligation, pursuant to the Americans with Disabilities Act, to provide services to the disabled in the most appropriate, integrated setting. The plaintiffs filed a motion seeking class certification, asserting that they were all similarly situated nursing home residents who wanted to live in the community but were forced to remain institutionalized against their will.

The U.S. District Court for the District of Columbia granted the motion for class certification, finding that alleged systemic deficiencies, such as the District’s failure to offer sufficient discharge planning or to provide residents with meaningful choices of community-based alternatives to nursing home care, were sufficient bases upon which to certify the class.

The District filed a petition for permission to file an interlocutory appeal of the district court’s ruling certifying the class.  The District argued that the lower court committed manifest error by failing to identify policies or practices that were common to all members of the class and that were amenable to class-wide resolution.

The U.S. Court of Appeals for the District of Columbia Circuit disagrees and upholds the class certification.  The court concludes that it was not manifest error for the lower court to find the allegations of systemic deficiencies in the program sufficient to establish a class of plaintiffs.

For the full text of this decision, click here.

Bed and/or Chair Rest + Neglect = Bedsores

Article by Brian A. Raphan. Published 3/17/15 in ‘THE DOCTOR WEIGHS IN’

When a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.

Any time a patient is confined to a bed or chair for a period of time and not provided proper and adequate care, the risk of pressure ulcers increases.

The National Pressure Ulcer Advisory Panel (NPUAP) defines a pressure ulcer as a “localized injury to the skin and/or underlying tissue, usually over a bony prominence, as a result of pressure, or pressure in combination with shear.” Illustrations of the stages of pressure ulcers are shown below:

stages of bedsores

Sadly, pressure ulcers are the underlying cause of mortality and morbidity for several thousand patients across the country each year. Researchers analyzing the national Medicare Patient Safety Monitoring System (MPSMS) database found that the nationwide incidence rate for hospital-acquired pressure ulcers was 4.5 percent. The five states with the highest incidence rates are New York (5.2%), Missouri (5.3%), New Jersey (5.3%), Massachusetts (5.5%) and Pennsylvania (5.9%).

The federal government, in its first year of a federal initiative to improve patient safety, recently imposed penalties aimed at reducing preventable harm. Five states saw a significant percentage of hospitals being penalized: New York, where 26% of hospitals were penalized by having their Medicare reimbursements cut by 1%; Missouri, 25%; New Jersey, 37%; Massachusetts, 22%; and Pennsylvania, 25%.

In New York State, penalized hospitals included some well-known healthcare facilities, such as Beth Israel Medical Center and New York University Langone Medical Center.

All sedentary patients are vulnerable, but the elderly and patients whose skin condition has been compromised are especially at risk. Pressure ulcers are most common on bony prominences with little protective fat or muscle (such as heels, hips, shoulders, and tail bones), and they develop when patients stay in one position for too long without shifting their weight. The constant pressure against the skin reduces blood flow to contact areas. The skin begins to break down and the tissue dies, possibly in a matter of hours. Friction and shear caused by sliding down in the bed, or being moved improperly from a stretcher to a bed can exacerbate the problem. Pressure ulcers slow a patient’s recovery, can lead to other issues and infection and prolong hospital stays. The total annual cost for treating pressure ulcers in the U.S. is estimated at $11 billion. However, pressure ulcers (also known as bedsores and decubitis ulcers) are preventable.

To prevent pressure ulcers and damage to the skin, recent NPUAP recommendations can be summarized in seven steps:

prevent bedsores

Because these seven steps are so easy to follow, when a patient develops pressure ulcers, it is often a sign of neglect and can even be the result of hospital malpractice, nurse malpractice or nursing home negligence.

Upon admission to a hospital for another health concern the issues can go unnoticed, allowing further damage to take place in a relatively short time. This also creates liability on the part of the hospital.

In many lawsuits that we handle, the hospital is dealt a bad hand by receiving a patient from a nursing home where a skin breakdown or pressure ulcer has already begun. At times, due to dementia for example, a patient may not be able to express or know how to communicate pain upon entering the hospital. However, this is no excuse for not identifying a high-risk patient and making regular daily assessments.

To be clear, pressure ulcers are not the fault of the patient. The patient is a victim. Medical negligence by a hospital, doctor, nurse, aide or medical technician is unacceptable and may be the cause of pain and suffering, or even result in death. It is simply not acceptable for patients to develop bedsores or pressure ulcers while they are in the care of medical professionals and receiving medical care and treatment at a facility.

There is no doubt that hospitals and staff, from talented skilled doctors, nurses and medical professionals to support staff and administration, do their best to help and treat patients. However, protocols exist in every facility, and perhaps, it is just a matter of every individual being a bit more aware, and caring just a little more, when dealing with the elderly and at-risk patients.

By Brian A. Raphan (Principal Attorney, Law Offices of Brian A. Raphan, P.C.

Download a Free Bedsore Legal, Medical & Treatment Guide

Can I Give My Kids $14,000 a Year?

If you have it to give, you certainly can, but there may be consequences should you apply for Medicaid long-term care coverage within five years after each gift.

medicaid planning

The $14,000 figure is the amount of the current gift tax exclusion (for 2014 and 2015), meaning that any person who gives away $14,000 or less to any one individual does not have to report the gift to the IRS, and you can give this amount to as many people as you like.  If you give away more than $14,000 to any one person (other than your spouse), you will have to file a gift tax return.  However, this does not necessarily mean you’ll pay a gift tax.  You’ll have to pay a tax only if your reportable gifts total more than $5.43 million (2015 figure) during your lifetime.

Many people believe that if they give away an amount equal to the current $14,000 annual gift tax exclusion, this gift will be exempted from Medicaid’s five-year look-back at transfers that could trigger a waiting period for benefits.  Nothing could be further from the truth.

The gift tax exclusion is an IRS rule, and this IRS rule has nothing to do with Medicaid’s asset transfer rules. While the $14,000 that you gave to your grandchild this year will be exempt from any gift tax, Medicaid will still count it as a transfer that could make you ineligible for nursing home benefits for a certain amount of time should you apply for them within the next five years.  You may be able to argue that the gift was not made to qualify you for Medicaid, but proving that is an uphill battle.

If you think there is a chance you will need Medicaid coverage of long-term care in the foreseeable future, see your elder law attorney before starting a gifting plan.

For more on Medicaid’s asset transfer rules, click here.

Regards,

Brian A. Raphan

The Law Offices of Brian A. Raphan, P.C.  7 Penn Plaza, New York, NY 10001  212-268-8200 

http://www.RaphanLaw.com

A great way to enhance quality of life for elder New Yorkers

Activities for Life NY, LLC  offers an amazing service that has been helping enhance the quality of life for many of our clients.
Activities for Life
My law office has used their unique services of for over 10 years because we have found they offer excellent 1 to 1 therapeutic recreation, tailored to our clients who have lost their connection to recreation and/or are unable to get out and enjoy life like they once did. I have personally seen some of my clients ‘come back to life’ under the tutelage of Marni Rose, President of Activities for Life.
The goal of therapeutic recreation is to help stimulate a person mentally and/or physically through fun, engaging, and creative activities, regardless of age or illness. One of the most important aspects of working with Marni and her team is that they really ‘get’ how to communicate to all the involved parties of someone under geriatric care.
Activities For Life’s relationships with personal care aides, care givers and managers, family members, and us lawyers allows her a 360 degree ability to coordinate the pieces with grace. I know that when my clients are contracting the services of Activities for Life, they will simply get the best that New York has to give in therapeutic geriatric services and live their best life possible.
-Brian
 To see the benefits of Marni’s service see links below.

WHY IRREVOCABLE TRUSTS VS OUTRIGHT GIFTING

People often wonder about the value of using irrevocable trusts in Medicaid planning. Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs involved.

Brian Raphan, P.C.

So, why complicate things with a trust? Why not just keep the planning as simple and inexpensive as possible?

The short answer is that gift transaction costs are only part of what needs to be considered. Many important benefits that can result from gifting in trust are forfeited by outright gifting. These benefits are what give value to using irrevocable trusts in Medicaid planning.

Key benefits of gifting in trust are:

  1. -Asset protection from future creditors of beneficiaries. Preservation of the exclusion of capital gain upon sale of the Settlors’ principal residence (the Settlor is the person making the trust).
  2. -Preservation of step-up of basis upon death of the trust Settlors o Ability to select whether the Settlors or the beneficiaries of the trust will be taxable as to trust income.
  3. -Ability to design who will receive the net distributable income generated in the trust.
  4. -Ability to make assets in the trust non-countable in regard to the beneficiaries’ eligibility for means-based governmental benefits, such as Medicaid and Supplemental Security Income (SSI).
  5. -Ability to specify certain terms and incentives for beneficiaries’ use of trust assets.
  6. -Ability to decide (through the settlors’ other estate planning documents) which beneficiaries will receive what share, if any, of remaining trust assets after the settlers die.
  7. -Ability to determine who will receive any trust assets after the deaths of the initial beneficiaries.
  8. -Possible avoidance of need to file a federal gift tax return due to asset transfer to the trust.

If you have questions about any of the above items, please call me, Brian A. Raphan, Esq at 212-268-8200 or 800-278-2960. There are additional measures available and your individual situation should be assessed before making any financial decision.

Maybe it’s time for a geriatric care manager

Geriatric care

Why do we hear so much about geriatric care management these days? It’s because there are so many benefits they can provide to seniors and care givers. Let’s first clarify the term: A professional Geriatric Care Manager (GCM) is a health and human services specialist who helps families who are caring for older relatives. The GCM is trained and experienced in any of several fields related to care management, including nursing, gerontology, social work, psychology, and logistics of health care and often finances relating to the elderly. They are trained to assess, plan, coordinate, monitor and provide services for the elderly and their families. Although not lawyers, they are often aware of legal issues elders may be soon facing.

The benefits to you, the child or care giver of the elder range from saving time (vetting out various needs), saving money (knowing financial pitfalls of some decisions in advance), making better care decisions (with insight from someone who has seen it all) and most importantly –reducing stress.  The stress of being alone in the decision making process, relief of now being informed about your various options and what may be right for the specific needs of the elder, ranging from doctor decisions, how to provide care, assisted living, home care and nursing care options. Doing it alone takes an enormous amount of time, energy, resources and self reliance.

According to Gladys Harris Geriatric Care Manager of The Olive Group, you may need a Geriatric Care Manager if:

•    A person has limited or no family support available

•    Family has just become involved with helping the individual and needs direction regarding available senior services

•    A person has multiple medical or psychological issues

•    A person is unable to live safely in his / her current environment

•    Family is either “burned out” or confused about care solutions

•    Family has a limited time and / or expertise in dealing with loved one’s chronic care needs

•    Family is at odds regarding care decisions

•    Individual is not pleased with current care providers and requires advocacy

•    Individual is confused regarding his / her own financial and / or legal situation

•    Family needs education and / or direction in dealing with behaviors associated with dementia

Gladys is a recommended resource of ours and helps families and elders in New Jersey. They offer a unique combination of compassion, knowledge, a ‘can-do’ attitude and a wide range of services which also include:

Solution Focused Counseling: Life transitions are a common reason for counseling. We focus on empowering individuals to find solutions in their life by figuring out what a person’s goals are, and supporting them to find ways to achieve those goals.

Care Coordination: Our holistic assessment includes a physical, psychological and social functioning evaluation of the older adult, as well as a home safety inspection. Based on the assessment, we will develop a customized client care plan to identify private and public resources available to support the older adult. We coordinate the support systems needed to keep the older adult safe and happy at home.

Wellness Monitoring: Regular visits with the older adult to help ensure that they receive the best care available. During our visits we ensure older adults are receiving help with things that they want done, computer skills, organize photos, plan family events, etc.

Accessibility Issue Resolution: Aging-in-place often requires making changes to the home to help maintain independence.  This may be de-cluttering, home improvements, home safety inspection

Relocation Services: We support families during transitions from home to another location or facility.   These services include cleaning, de-cluttering, downsizing, and setting up in the older adult’s new home.

Cost savings is also a key component to good geriatric care management. You can learn more about it and find out more about the range of services by clicking here: www.TheOliveGroup.llc.com

Regards,

Brian

Can you sue for Bedsores or Pressure Sores?

bedsore lawyer

Bedsores should not happen while in a nursing home or hospital. Often they are due to neglect and negligence.

Bedsores, Pressure Sores or Decubitis Ulcers are not the fault of the patient. At a hospital or nursing home there are federal laws in place to protect patients and assure they get the proper care. When these standards of care are not used sores can develop. Simple duties like turning an immobile patent frequently to relieve pressure, proper cleaning an hygiene are sometimes not provided. If a sore develops the patient has now become a victim. The sores can cause extreme pain and suffering and unfortunately even death. You can sue. And you have every right to do so and get financial compensation. Depending on the case, monetary awards can be in the millions. Below are some of the different types of lawsuits relating to sores.

Medical Malpractice

Medical Malpractice cases arise when a health care practitioner departs from the accepted standard of care in the medical community. In more simple terms, when a hospital, doctor, nurse, practitioner commits a serious error in his/her care and treatment, which results in further injury to the patient. Some common examples are failing to diagnose the bedsore; failing to report bedsores or pressure sores; failing to admit a patient into the hospital for bedsores when necessary; and failing to perform a medical procedure or provide treatment for bedsores that was otherwise indicated.

FREE BEDSORE FACTS BOOKLET>

Nursing Home Liability

The elderly population frequently suffers due to serious neglect once they become patients or residents in nursing homes or any long term care facility.  Some critical issues relating to sores are: over or improper medication; lack of supervision; inadequate wound care leading to infections; not reporting the issue in a timely manner and overall neglect.

The severe injuries that patients experience along with the constant pain and suffering associated with bedsores are often the result of preventable situations. In our experience in handling these types of cases we have found frequent examples of poor care planning; lack of stimulation; failures to turn and position patients; failure to provided adequate pressure relief devices to patients; and unbelievably, failure to change adult diapers and failure to provide sufficient quantities of food and water. As a result of neglect in Nursing Homes, the illnesses range from severe infections and amputations, to dehydration and, unfortunately, death. Bedsores and pressure sores often lead to further infections and illnesses.

Hospital Negligence

At one time or another we all go to hospitals. While patients there, we have the right to expect quality medical care and treatment.  The unfortunate reality is that there are often tragic outcomes that are the result of medical malpractice which should never occur. This is especially true with bedsores.

Hospital Negligence occurs when there are “departures in the standards of good and accepted medical practices” that one should be able to expect in the local medical community given the current state of medical treatment and technology. These departures in the standard of care can stem from negligent treatment on the part of Doctors, Surgeons, Specialists, Lab Technicians, Physician Assistants, Nurses, Nurses Aides, Therapists, Administrators, Pharmacists and any other member of the Hospital Staff whose conduct, actions, or inaction, causes injuries and suffering that should not have occurred.

Some examples of Hospital Negligence include failure to provide proper medication or medical devices; failure to provide proper monitoring and supervision; failure to order consultations to other medical specialists; failure to diagnose bedsores in a timely fashion; failure to prevent infection and amputation; failure to turn and position the patient resulting in pressure sores, bedsores or decubitus ulcers; failure to perform a medical procedure or surgery properly; failure to warn patient of risks of a surgery or medical procedure; failure to keep family members informed regarding medical decision making; and failure to provide safe and proper discharge instructions.

Wrongful Death

This type of lawsuit occurs when a spouse or close relative has a right to recover when a loved one dies due to the sores or a medical complication that was related to the sores. Recovery is from the at-fault or negligent party. Recovery can include loss of income, services, comfort and society. New York has a very restrictive and complicated wrongful death statute. Our knowledgeable lawyers take you through it one step at a time. We understand that dealing with the loss of a loved one is not easy, so we are extremely sensitive when dealing with family members. Unfortunately, left untreated or not treated in time, bedsores can rapidly progress from stage 1-4 and lead to further complications often resulting in a wrongful death.

If you or someone you know is a victim of bedsores, the first thing to do is get the stage of the sore identified and immediate and proper medical attention. If you think you have a lawsuit then contact me on how to proceed. You can also begin an evaluation online by clicking here. We can even help you get better medical attention at the same time. Feel free to email about these matters at bedsores@RaphanLaw.com

Regards, Brian

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