Pressures Sores: Frequently Asked legal questions

 

Asking questions is important for any consultation. When it comes to pressure sores and bedsores it’s often helpful to read what others have asked via BedsoreHotline.com

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  • If the patient was at a hospital first and then a nursing home which do we sue?

    It always depends on individual and medical circumstances but the possibility exists that both are liable. Often an injury begins in a hospital, may not be reported and/or is overlooked or neglected on intake at the second facility where it may get worse or lead to infection and other medical issues.

  • Do I have a malpractice case?

    A case may be medical malpractice on behalf of a facility or doctor. There may be hospital negligence and nursing home liability as well. In unfortunate and sad circumstances it may be a wrongful death lawsuit, where a family member or loved one may have the right to recover losses. Our team of experts will help determine the best options for for your bedsore or pressure sore, decubitis ulcer lawsuit.

  • What if the patient is too ill to appear in court?

This is not an issue and often the case with bedsore victims. For bedsore and pressure sore lawsuits there’s a legal team that includes experienced bedsore litigators, and medical professionals that can testify based on patient medical records and treatment or lack of and improper treatment. As well as other expert witnesses that look into hospital procedures, policy  and practices and determine if any federal violations were evident or standards of procedure were not met. Medical records and pictures of wounds are used.

  • How much does it cost to sue?

    There is no fee to you unless we win. When we accept a case we put in the resources and hours of our bedsores legal team because we are confident of a successful outcome based on the facts of the case. If we take on your case it’s because we see huge upside financial potential for the victim or family of the victim. We work on contingency—no upfront fee or time billed to you. When you win we get an agreed upon portion of the award.

  • Will beginning a lawsuit get better care for the victim?

    Once a hospital or nursing home knows a bedsore lawsuit is possible, often the care and treatment of the patient improves. This is because now they know they are under scrutiny and may be even further liable legally if not giving the proper care and medical attention after the sores have been documented by family and bedsore lawyers. Additionally, our law firm will let you know the standards of care that is necessary for you or your loved one. We can even help guide you on the best way to discuss issues with the doctor or staff and get the desired results.

  • I want to sue – does it take long? Does my dad have to appear in court?

    Timing of a case varies. With expertise and experience and a hands-on approach we move swiftly. The size of our firm allows us to focus on cases so they don’t get lost in the shuffle. Unlike some other law firms, our legal team of attorneys, paralegals, research assistants, medical experts and more, have the experience and knowledge to avoid time lags. Many times cases are seåttled before even going to court. Of course, the plaintiff has a say in this decision and we do what is best for our client.

  •  Do I need money to sue-what does contingency mean?

    You will not need to lay out any money. We handle all of our bedsore and pressure sore negligence or malpractice cases on a contingency fee basis. That means that we only charge a legal fee if we are successful and recover money for you. Our fee is typically 33 1/3% of the net recovery after the costs and disbursements that we advance are deducted. The contingency fee may be even lower depending on the facts of the case and the reason the sores happened. With a free consultation, a bedsore law firm that advances all of the necessary costs, and a contingency fee arrangement, you get our reputable law firm with no out of pocket expenses.

  • How do I know if I have a good bedsore lawsuit? The nurse said the sores were caused by my father and existed?

    Don’t put much credence in the opinion of anyone that isn’t a legal expert. Even a medical professional or doctor doesn’t have the legal knowledge and they or facility administrator may even try to persuade you against a bedsore or pressure sore lawsuit. Such tactics aren’t new. Don’t be a victim twice. Consult with legal professionals when medical ones let you down. Then you can use your best judgement on how to proceed with your lawsuit.

  • What happens if my case loses-will i have any fees to pay?

    Absoultely not. We will not charge you one dime if we lose. No matter how much time or money we invest in your case we only get paid when we win. We do not accept every case offered to us. We use our expertise and team approach for cases of value to the victim and the firm.

 

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FAQ’s: Frequently asked questions about bedsore and pressure sore lawsuits:

Bedsores happen more often than necessary and they are not the fault of the patient. The patient is usually a victim with  a right to sue. Below are some answers to frequent questions we have received:

  • If the patient was at a hospital first and then a nursing home which do we sue?

    It always depends on individual and medical circumstances but the possibility exists that both are liable. Often an injury begins in a hospital, may not be reported and/or is overlooked or neglected on intake at the second facility where it may get worse or lead to infection and other medical issues.

  • Do I have a malpractice case?

    A case may be medical malpractice on behalf of a facility or doctor. There may be hospital negligence and nursing home liability as well. In unfortunate and sad circumstances it may be a wrongful death lawsuit, where a family member or loved one may have the right to recover losses. Our team of experts will help determine the best options for for your bedsore or pressure sore, decubitis ulcer lawsuit.

  • What if the patient is too ill to appear in court?

This is not an issue and often the case with bedsore victims. For bedsore and pressure sore lawsuits there’s a legal team that includes experienced bedsore litigators, and medical professionals that can testify based on patient medical records and treatment or lack of and improper treatment. As well as other expert witnesses that look into hospital procedures, policy  and practices and determine if any federal violations were evident or standards of procedure were not met. Medical records and pictures of wounds are used.

  • How much does it cost to sue?

    There is no fee to you unless we win. When we accept a case we put in the resources and hours of our bedsores legal team because we are confident of a successful outcome based on the facts of the case. If we take on your case it’s because we see huge upside financial potential for the victim or family of the victim. We work on contingency—no upfront fee or time billed to you. When you win we get an agreed upon portion of the award.

  • Will beginning a lawsuit get better care for the victim?

    Once a hospital or nursing home knows a bedsore lawsuit is possible, often the care and treatment of the patient improves. This is because now they know they are under scrutiny and may be even further liable legally if not giving the proper care and medical attention after the sores have been documented by family and bedsore lawyers. Additionally, our law firm will let you know the standards of care that is necessary for you or your loved one. We can even help guide you on the best way to discuss issues with the doctor or staff and get the desired results.

  • I want to sue – does it take long? Does my dad have to appear in court?

    Timing of a case varies. With expertise and experience and a hands-on approach we move swiftly. The size of our firm allows us to focus on cases so they don’t get lost in the shuffle. Many times cases are settled before even going to court. Of course, the plaintiff has a say in this decision and we do what is best for our client.

  • How do I know if I have a good bedsore lawsuit? The nurse said the sores were caused by my father and existed.

    Don’t put much credence in the opinion of anyone that isn’t a legal expert. Even a medical professional or doctor doesn’t have the legal knowledge and they or facility administrator may even try to persuade you against a bedsore or pressure sore lawsuit. Such tactics aren’t new. Don’t be a victim twice. Consult with legal professionals when medical ones let you down.

For more information or to see if you have a valid lawsuit, click here.

To download a Free Bedsore Fact Sheet, click here.

bedsores information

The Law Offices of Brian A. Raphan, P.C.

http://www.raphanlaw.com

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).
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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.

What Rights Do Bedsore Victims Have?

You’d be surprised how many times we hear the following from clients…”the nursing home said our dad’s skin condition was broken down and poor health led to bedsores”, or some similar version of this. These comments  inappropriately lead people to believe they or there loved ones do not have legal rights when it comes to bedsores or pressure sores (decubitus ulcers). Of course they are not the fault of the bedsore victim. Especially when they are in the care of professionals of a hospital, medical or nursing facility. Patients, elders, unhealthy or not do have legal rights–which also includes the right to sue for bedsores. Read more about the Rights of Bedsore Victims below:

bedsore treatment, bed sore malpractice

  1. The defendants insurance company may ask you for a recorded statement describing the appearance of bedsores and your treatment. Remember you have no obligation to give them such a statement, nor is it wise to do so.

  2. The defendant’s insurance company will ask you for authorizations to obtain your medical records. Let your attorney release your records after he or she has reviewed them. It’s best not to offer information by yourself. 

  3. Some insurance companies will offer you money to settle the case before you contact an attorney. In this situation the insurance company knows they will have to pay out money and they hope to settle the claim before you hire an attorney who can negotiate and demand a higher amount. Always consult an attorney if an insurance company is offering you money. By doing so you will in all likelihood increase your net recovery even after taking out the lawyers fee.

  4. Once a bedsore case is settled and the defendant is released, regardless of whether you make a full recovery or not, the money you received cannot be taken away, it is your money…tax free.

  5. If you need surgery, it is important to go forward with that before you settle your pressure sore or bedsore lawsuit.

  6. If you are persuaded by a hospital or nursing home and settle a case on your own, only to find out 6 months later you have more serious conditions than first thought, you have forfeited your rights to recover additional money. That is why it is so important to contact an experienced bedsore attorney before you sign anything.

  7. You are able to sue for and recover a monetary award from new injuries and infections and the aggravation of old ones caused by bedsores or pressure ulcers.

Additional Bedsore information & Guides:

THE DOCTOR WEIGHS IN BEDSORE ARTICLE by Attorney Brian A. Raphan

HOW MUCH IS A BEDSORE LAWSUIT WORTH: CASE EVALUATOR

DOWNLOAD: BEDSORE LEGAL & MEDICAL GUIDE

Grades of pressure sores
If a person is bedridden for long enough, the areas of skin constantly in contact with the mattress
or chair will start to discolor. This shows that the skin is in danger of ulcerating.
Pressure sores are graded to four levels, including:
• Grade I – skin discoloration, usually red, blue, purple or black
• Grade II – some skin loss or damage involving the top-most skin layers
• Grade III – necrosis (death) or damage to the skin patch, limited to the skin layers
• Grade IV – necrosis (death) or damage to the skin patch and underlying structures, such as tendon, joint or bone.

Complications of pressure sores
Untreated pressure sores can lead to a wide variety of secondary conditions, including: • Sepsis (bacteria entering the bloodstream)
• Cellulitis (inflammation of body tissue, causing swelling and redness)
• Bone and joint infections
• Abscess (a collection of pus).

For more helpful information  or a free consultation you may contact me by email here: Contact

Regards, Brian A. Raphan

‘Smart bandage’ detects bedsores before they are visible to doctors

BERKELEY — Engineers at UC Berkeley are developing a new type of bandage that does far more than stanch the bleeding from a paper cut or scraped knee.

Thanks to advances in flexible electronics, the researchers, in collaboration with colleagues at UC San Francisco, have created a new “smart bandage” that uses electrical currents to detect early tissue damage from pressure ulcers, or bedsores, before they can be seen by human eyes – and while recovery is still possible.

Associate professor Michel Maharbiz explains how the smart bandage works to detect bedsores. (UC Berkeley video by Roxanne Makasdjian and Phil Ebiner)

“We set out to create a type of bandage that could detect bedsores as they are forming, before the damage reaches the surface of the skin,” said Michel Maharbiz, a UC Berkeley associate professor of electrical engineering and computer sciences and head of the smart-bandage project. “We can imagine this being carried by a nurse for spot-checking target areas on a patient, or it could be incorporated into a wound dressing to regularly monitor how it’s healing.”

The researchers exploited the electrical changes that occur when a healthy cell starts dying. They tested the thin, non-invasive bandage on the skin of rats and found that the device was able to detect varying degrees of tissue damage consistently across multiple animals.

The smart bandage is fabricated by printing gold electrodes onto a thin piece of plastic. This flexible sensor uses impedance spectroscopy to detect bedsores that are invisible to the naked eye. (Image courtesy of UC Berkeley)
The smart bandage is fabricated by printing gold electrodes onto a thin piece of plastic. This flexible sensor uses impedance spectroscopy to detect bedsores that are invisible to the naked eye. (UC Berkeley image)

Tackling a growing health problem

The findings, published today (Tuesday, March 17) in the journal Nature Communications, could provide a major boost to efforts to stem a health problem that affects an estimated 2.5 million U.S. residents at an annual cost of $11 billion.

Pressure ulcers, or bedsores, are injuries that can result after prolonged pressure cuts off adequate blood supply to the skin. Areas that cover bony parts of the body, such as the heels, hips and tailbone, are common sites for bedsores. Patients who are bedridden or otherwise lack mobility are most at risk.

“By the time you see signs of a bedsore on the surface of the skin, it’s usually too late,” said Dr. Michael Harrison, a professor of surgery at UCSF and a co-investigator  of the study. “This bandage could provide an easy early-warning system that would allow intervention before the injury is permanent. If you can detect bedsores early on, the solution is easy. Just take the pressure off.”

Bedsores are associated with deadly septic infections, and recent research has shown that odds of a patient dying are 2.8 times higher when they have pressure ulcers. The growing prevalence of diabetes and obesity has increased the risk factors for bedsores.

“The genius of this device is that it’s looking at the electrical properties of the tissue to assess damage. We currently have no other way to do that in clinical practice,” said Harrison. “It’s tackling a big problem that many people have been trying to solve in the last 50 years. As a clinician and someone who has struggled with this clinical problem, this bandage is great.”

Cells as capacitors and resistors

The researchers printed an array of dozens of electrodes onto a thin, flexible film. They discharged a very small current between the electrodes to create a spatial map of the underlying tissue based upon the flow of electricity at different frequencies, a technique called impedance spectroscopy.

Researchers varied the amount of pressure applied to the skin, creating bedsores ranging in severity. The orange hexagon marks where the bandage was placed on the skin, and the dotted blue circle highlights where pressure was applied to the tissue. The "reversible damage" example highlights sensitivity of the "smart bandage" impedance sensor since the wound is not visible at the surface of the skin. (Schematic courtesy of UC Berkeley)
Researchers varied the amount of pressure applied to the skin, creating bedsores ranging in severity. The orange hexagon marks where the bandage was placed on the skin, and the dotted blue circle highlights where pressure was applied to the tissue. The “reversible damage” example highlights the sensitivity of the “smart bandage” impedance sensor since the wound is not visible at the surface of the skin. (Schematic courtesy of UC Berkeley)

The researchers pointed out that a cell’s membrane is relatively impermeable when functioning properly, thus acting like an insulator to the cell’s conductive contents and drawing the comparison to a capacitor. As a cell starts to die, the integrity of the cell wall starts to break down, allowing electrical signals to leak through, much like a resistor.

“Our device is a comprehensive demonstration that tissue health in a living organism can be locally mapped using impedance spectroscopy,” said study lead author Sarah Swisher, a Ph.D. candidate in electrical engineering and computer sciences at UC Berkeley.

To mimic a pressure wound, the researchers gently squeezed the bare skin of rats between two magnets. They left the magnets in place for one or three hours while the rats resumed normal activity. The resumption of blood flow after the magnets were removed caused inflammation and oxidative damage that accelerated cell death. The smart bandage was used to collect data once a day for at least three days to track the progress of the wounds.

The smart bandage was able to detect changes in electrical resistance consistent with increased membrane permeability, a mark of a dying cell. Not surprisingly, one hour of pressure produced mild, reversible tissue damage while three hours of pressure produced more serious, permanent injury.

Promising future

“One of the things that makes this work novel is that we took a comprehensive approach to understanding how the technique could be used to observe developing wounds in complex tissue,” said Swisher. “In the past, people have used impedance spectroscopy for cell cultures or relatively simple measurements in tissue. What makes this unique is extending that to detect and extract useful information from wounds developing in the body. That’s a big leap.”

Maharbiz said the outlook for this and other smart bandage research is bright.

“As technology gets more and more miniaturized, and as we learn more and more about the responses the body has to disease and injury, we’re able to build bandages that are very intelligent,” he said. “You can imagine a future where the bandage you or a physician puts on could actually report a lot of interesting information that could be used to improve patient care.”

Other lead researchers on the project include Vivek Subramanian and Ana Claudia Arias, both faculty members in UC Berkeley’s Department of Electrical Engineering and Computer Sciences; and Shuvo Roy, a UCSF professor of bioengineering. Additional co-authors include Amy Liao and Monica Lin, both UC Berkeley Ph.D. students in bioengineering; and Yasser Khan, a UC Berkeley Ph.D. student in electrical engineering and computer sciences, who fabricated the sensor array.

Study co-author Dr. David Young, UCSF professor of surgery, is now heading up a clinical trial of this bandage.

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To learn about other bedsore and pressure sore treatments click here.

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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

You may be signing away your right to sue the nursing home

By Michelle Andrews, Kaiser Health News

When Paul Ormond signed John Mitchell into a nursing home in Dennis, Mass., in June, he was handed a few dozen pages of admission papers. Ormond, Mitchell’s legal guardian and an old friend, signed wherever the director of admissions told him to.

He didn’t realize that one of those documents was an agreement that required Mitchell and his family to take disputes to a professional arbitrator rather than to court.

bedsore lawyer

Mitchell had been institutionalized since suffering a stroke in 1999. During a hospital stay early this summer, Mitchell, then 69, had received a tracheotomy and needed to switch to a nursing home that could accommodate him.

A few weeks after Mitchell arrived at the new nursing home, staff members dropped him while using a lift device to move him from his bed to his chair. Later that night Ormond, 63, got a call from the nursing home that Mitchell was unresponsive. Mitchell was rushed to the hospital, and doctors found that the fall had caused extensive bleeding on his brain. He died a few days later.

Mitchell’s sons hired a lawyer to look into the circumstances surrounding their father’s death. That was when Ormond learned that amid all the admissions papers he had signed was an arbitration agreement.

“I thought it was deceptive, and I was pretty angry that I’d been tricked into signing something that I didn’t know what it was,” says Ormond.

A mandatory arbitration agreement is an often overlooked document in the package of admissions papers at many nursing homes these days. It can have an outsize impact if something goes wrong. But anxious seniors or their caregivers often sign every document that’s put in front of them, perhaps only glancing at the content.

Signing an arbitration agreement means that in the event of a problem that is not amicably resolved — Mom slips on a wet floor and breaks her hip, say, or Dad wanders off the premises and gets hit by a car — you agree to bring the dispute before a professional arbitrator rather than file a lawsuit for negligence or wrongful death, for example.

Agreeing to arbitrate is generally not in families’ best interests, say consumer advocates. For one thing, it can be pricey. In addition to hiring a lawyer, the patient or family generally has to pay its share of the arbitrator’s fee, which may come to hundreds of dollars an hour, says Paul Bland, a senior attorney at Public Justice, a public interest law firm based in Washington.

“In court, you don’t have to pay the judge,” he says. “Our taxes pay for that.”

Court proceedings are also conducted in a public courtroom and leave a detailed public record that can inform industry practice and help develop case law, say experts. Not so with arbitration hearings, which are conducted in private and whose proceedings and materials are often protected by confidentiality rules.

The amount awarded — if any — may also be less if an arbitrator hears the case than it would be if a case went to trial, say experts.

Aon Global Risk Consulting analyzed 1,449 closed claims involving long-term-care providers between 2003 and 2011 and found that there was no money awarded in 30 percent of claims where a valid arbitration agreement was in place, compared with 19 percent of claims in which there was no arbitration agreement or the agreement was determined to be unenforceable.

Likewise, nearly 12 percent of claims without arbitration agreements resulted in awards of $250,000 or more, compared with 8.5 percent of claims with arbitration agreements.

The study was conducted with the American Health Care Association, which represents 11,000 long-term-care facilities. According to the report, “loss rates” — reflecting the dollar value of liability claims paid — are increasing 4 percent annually.

“Liability costs for providing care have grown and escalated” in recent years, says Greg Crist, a spokesman for the association. Arbitration agreements help keep a lid on those costs, he says.

That may explain why arbitration agreements have become much more common in nursing homes, experts say. The agreements are increasingly used in assisted living facilities as well.

Arbitration can also benefit patients and their families, Crist says. Claims are typically resolved more quickly than court cases, he says, so attorney costs are lower and patients can retain a larger portion of any financial settlement.

The Federal Arbitration Act, enacted in 1925, allows for two sides in a dispute to agree to binding arbitration to resolve their differences. If a dispute arises and an arbitration agreement is in place, the arbitrators are jointly selected by the patient and the nursing home.

Although consumers usually don’t realize it, there’s a simple way to avoid being forced into arbitration, say experts: Don’t sign the arbitration agreement.

What happens if you don’t sign? Nothing, Crist says. “It’s not a condition of admission to the facility,” he says. The American Health Care Association doesn’t support requiring people to sign an arbitration agreement as a condition of admission, he says, although practices may vary at individual nursing homes.

If you do sign and then wish you hadn’t, arbitration agreements typically have a 30-day “opt-out” provision that allows you to change your mind and retain your rights to sue.

The judge in John Mitchell’s wrongful death case threw out the agreement on the grounds that it was “unconscionable,”  a legal term used to describe contracts that are unfair or unjust.

“The judge agreed it was too much to expect me to digest all of this information at once, and that the arbitration clause hadn’t been explained thoroughly,” says Ormond. A trial date hasn’t yet been set.

Arguing that an agreement is unconscionable is one of the few ways people can extricate themselves from arbitration agreements once a dispute arises, says David Hoey, a North Reading, Mass., lawyer representing the Mitchell family. Another possibility is to prove that the person wasn’t competent to sign an agreement or that the family member who signed wasn’t legally qualified to do so.

Better yet, experts agree, is not to sign in the first place.

Related article: Should you sign that nursing home agreement:

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.

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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

Bedsores & Nursing Home Obligations

Waiting – And – Waiting On The Nursing Home Inspector

This KHN story was produced in collaboration by Kaiser Health News

Mary Chiu was shocked by the bed sores on her 85-year-old mother.

One on her backside was so deep it exposed the bone; others formed on her left leg, heel and big toe. Half a dozen times, Sui Mee Chiu had to receive hospital treatment for the sores and bacterial infections.

bedsore lawsuit

The wounds persisted for months, until the day she died in April 2012 of respiratory failure.

“She suffered,” Mary Chiu, 56, said. “I don’t wish that on anybody.”

In September 2011, Mary Chiu sent a 7-page complaint to Los Angeles County public health officials requesting a thorough investigation of the nursing home where her mother had lived for nearly two years. That December, she sued the home, Arcadia Health Care Center.

The lawsuit is over: An arbitrator ruled that Sui Mee Chiu had been a victim of elder abuse, negligence and wrongful death and awarded her daughter more than half a million dollars. The public health department, however, still hasn’t finished its investigation. As a result, when consumers check public records on nursing home quality, they won’t find any report of Chiu’s case at Arcadia.

“The investigation is still in process and Public Health is inquiring into the circumstances behind the delay in the final report and closure of this case,” according to a statement last week from the Los Angeles County Public Health Department. “Public Health regrets the delay and is working to reduce the time from initiation of investigations until closure.”

The case is just one example of hundreds in Los Angeles County and thousands statewide in which investigations by nursing home regulators have remained incomplete for months, sometimes years. There were 3,044 open cases in the county as of mid-March, 945 of which date back two years or more, according to an audit released last week by the Los Angeles County Auditor-Controller.

Chiu’s attorney, Michael Moran, called the department’s delayed handling of her mother’s case by the public health department a “wholesale failure.”   “It is all about accountability,” he said.

In cases like Chiu’s, there is no information on state or federal websites about the complaint or inspectors’ findings. Consumers can see, however, that in 2011, while Chiu was living at the Arcadia nursing home, inspectors found some residents didn’t receive proper treatment to prevent new pressure sores or heal existing ones, according to federal documents.

But until a reporter called last week, the Arcadia Health Care Center website was highlighting its status as a five-star facility, the maximum possible rating on a U.S. official government database. Its actual rating is three stars. The claim has since been taken down.

Thomas Collins, Arcadia Health Care Center’s attorney, said he believed the rating was changed after the last inspection.

In a written statement, he said that the judge’s ruling in the Chiu case was “unwarranted and not supported by the evidence.”

“We were and remain extremely disappointed by the ruling,” he said.

Chu had a number of underlying conditions, and the nursing home successfully managed them,  he  said, adding that the family “always expressed their satisfaction with the care.”

The arbitrator’s ruling cannot be appealed. 

BEDSORE FACTS AND YOUR LEGAL RIGHTS>

Systemic delays

Statewide, delays in nursing home inspections have been a persistent problem. At a January hearing, legislators demanded more accountability and efficiency. A state Assembly bill would require investigations of mistreatment or abuse to be completed within 40 days.

The problem is particularly acute in Los Angeles County, which has a third of the state’s nursing homes. The county oversees nursing homes on behalf of the California Department of Public Health and the federal Centers for Medicare & Medicaid Services. Last month, Kaiser Health News and the Los Angeles News Group reported that L.A. County officials had attempted to clear their backlog in part by instructing inspectors to close cases without fully investigating them. Jonathan Fielding, who heads the county public health department, says all cases have been investigated but not all have been written up. Under questioning by Los Angeles County supervisors last month, Fielding said that the department does not have adequate funding or staffing to meet all federal and state requirements. The division has an annual budget of $26 million but needs $33.5 million, he said.

Supervisors ordered an audit, which was issued last week. It found a lack of central oversight over inspections, noting that the department did not set or track timelines for investigations. The department also didn’t properly manage its funding, leaving about $4 million in its budget unspent over the last two fiscal years, the audit reported.

These problems concern Molly Davies, coordinator of the WISE & Healthy Aging Long-Term Care Ombudsman Program for L.A. County, whose position is partially funded by the state and federal governments. She said she has recently come across seemingly egregious cases in which the investigations took too long.

Among the cases, as described in records:

*The county received a report in November 2009 alleging that a woman with diabetes and bipolar disorder had been sexually abused by a staff member at a Palos Verdes nursing home. An investigator visited the facility a few weeks later but didn’t issue a fine until October 2013. *A Culver City nursing home reported in March 2011 that an 87-year-old woman died after being given a narcotic at a dose 10 times higher than prescribed. Three years later, a fine of $20,000 was issued.

*In 2010, the department investigated an allegation that a certified nursing assistant at a Torrance facility was videotaped abusing a partially paralyzed man with brain damage. The case was not completed until this year, when a $20,000 citation was issued.

‘DPH was not doing their job’

Mary Chiu’s mother, a Chinese immigrant, loved to cook traditional food and watch Chinese soap operas. As she aged, she developed dementia, Parkinson’s disease and depression. Chiu decided her mother would be best taken care of in a nursing home. She said the Arcadia Health Care Center had five stars and was around the corner. Sui Mee Chiu moved there in May 2009. In late 2010, during a meeting with staff at the home, Chiu heard her mother had an infected bed sore, according to her September 2011 compliant. A few months later, the wound was so severe she had to be transferred to a hospital. Chiu then confronted the staff, who blamed her mother for being “non-compliant” and her father for interfering with the care during his visits, according to the arbitrator’s ruling.

Her father, now deceased, was then 89 and had a history of strokes. But he visited the facility twice daily, staying a total of about four hours.

“My parents have been married for almost 60 years and my father’s only concern is to make sure my mother is comfortable,” Chiu said in her complaint.

Chiu received a letter in October 2011 from the public health department acknowledging the complaint and saying an investigator had been assigned. In July 2012, after her mother had died, Chiu sent another letter and photos of the ulcers. She said she didn’t get any response until this week, after a reporter and she separately called the department.

According to the department’s recent statement, an inspector began the investigation in October 2011, within the 10 days required by law.  An inspector observed residents with similar medical conditions at the Arcadia Health Care Center, conducted interviews and reviewed records, the department said. Officials said they were not able to interview Sui Mee Chiu, who had been transferred by her daughter to a Monrovia facility after a hospital visit in April 2011.

No questions were raised about the care provided in Monrovia by Chiu or the arbitrator.

The  arbitrator, retired Superior Court Judge James Alfano, ruled in October 2013 that the nursing home was reckless in its care of Chiu, leading to the severe ulcer that contributed to her death. Her immune system was weakened by antibiotics for treatment of the pressure sore, he wrote. Among other things, he found that the older woman had not been turned properly, nor had she received proper wound care .

“The documentation presented in this case reflects a complete failure of the nursing staff to comply with their own guidelines,” he wrote. Chiu said that she was glad the nursing home had to take responsibility for its actions. But she wishes the public health department would, as well.

“At the end of the day, you have a duty to do your job,” she said. “DPH was not doing their job.”

This article was produced by Kaiser Health News with support from The SCAN Foundation.