Note: This is a summary of an actual case of public record that I handled. I will use generic names instead of actual identities. Unless the case was tried to verdict, any settlement or resolution was with the defendant party not admitting any fault or liability.

This story is why I do what I do.

The Victim

Jane was elderly and was new to the nursing home. She suffered from a condition that left her permanently bedridden, unable to walk or even get out of bed on her own. This limitation was well-documented by her healthcare providers. Additionally, Jane suffered from advanced dementia that often prohibited her from being able to recount the activities of any specific day. 

Background

This scenario is very common in the nursing home setting, as many reach the point where remaining at home is simply no longer an option due to care needs. When a resident is unable to maneuver safely on their own in and out of the bed and/or to the restroom, the staff must adopt a plan of care for a one or two-person assist at all times. Due to her particular size, weight, and physical impairments, Jane required a two-person assist. In theory, Jane’s family could rest easy knowing that if Jane needed to use her restroom or get out of bed for any reason, two staff members would be there to assist her. This is the promise the nursing home made when they agreed to accept Jane under their care.

The Situation

Jane’s family explained to me that one of them had gone to visit Jane and upon doing so, found Jane to be in great pain. Due to her dementia, Jane could not explain what had happened, but it was apparent that she was in much distress. The daughter demanded an ambulance be called, and upon moving her, the EMTs determined the source of her pain was in her hip. Diagnostic testing and evaluation at the hospital revealed that Jane had unexplained bruising and had sustained a broken hip. However, due to her overall condition, Jane was not a candidate for surgery so that was not an option. Jane rapidly progressed downhill and died within a week.

My Role

When the nursing home staff was unable to offer any explanation to the family, I was retained to look into a possible lawsuit. Upon obtaining and reviewing the records from the nursing home, I rather quickly concluded that the staff had most assuredly either caused or allowed Jane to fall while assisting her out of bed. You see, like many residents, Jane was unable to perform on her own any movement that would result in a broken hip since she could not physically get out of bed on her own or without help. However, her bruising and the broken hip must have happened outside of her bed. I have seen advanced bone cancer patients whose bones were so fragile that manipulating them in bed resulted in a break, but this was not one of those cases. This had to have happened out of bed and only with failed assistance of some sort by the nursing home staff.

The Turtle on a Fencepost

Jane’s event was what I call the turtle on a fencepost. If a rancher finds a turtle on a fencepost, he can safely conclude two things: (1) the turtle shouldn’t be on the fencepost, and (2) the turtle didn’t get there by itself. I was certain that Jane’s broken hip occurred when she hit the floor. With that, I knew she shouldn’t have been on the floor, and I knew she didn’t and couldn’t get there by herself. Although there is no mention of the event in Jane’s chart as it should be – followed by exams and treatment which didn’t happen – questioning the nurse aide staff under oath confirmed the obvious.

In this instance, only one aide was there to assist – remember that Jane’s care plan required a two-person assist at all time – and Jane fell while only one person was assisting. After she fell the aide was able to get additional assistance to take Jane to the restroom and then back to bed, with the aides never knowing that Jane had suffered a broken hip. One cannot help but conclude that Jane suffered additional pain and suffering as a result of them moving her post-fall while not taking precautions against further injury.

Two-Person Assist Failure: The Case

While the fall itself was careless neglect, the failure to document the fall was intentional abuse, as was the failure to have a licensed nurse do a thorough exam thereafter. It was also abuse when the nursing home failed to notify Jane’s family and physician of the fall, and to monitor Jane post-fall for pain and a potential injury. A subsequent care plan was required but not put into place immediately, but was not done because there was no incident report completed that would have triggered a resident assessment and new orders. The wrongful death lawsuit alleged all of these as post-injury acts/failures that led to not only Jane’s untreated pain and suffering, but ultimately to her death.

In addition, based on what I could determine, the negligence of the nursing home was: (1) failure by the aides to use two-person assist; (2) failure to prevent Jane from falling to the floor while being assisted; (3) failure of the ownership to have sufficient staff to care for all residents according to their particular needs, including Jane’s need for two persons to assist her; and (4) failure to properly train staff. The case was resolved without trial.

Final Thoughts

I have investigated and handled several cases with almost identical fact patterns. Sadly, the turtle on a fencepost analogy fits a number of scenarios where the long-term care facility has the answer for how the resident is injured, but chooses to cover it up instead of being honest. Honesty often requires changes that in turn requires a financial and management commitment that these providers have determined is too great a hit on their pocketbooks. I have been successful in changing their attitudes about placing profits over people.

At The Law Office of David M. Kennedy, we are committed to standing up for the rights of those who have suffered personal injuries. David represents victims and their families, ensuring that justice is served and that those responsible are held accountable. If you suspect that someone you love has suffered from abuse or neglect in nursing homes, assisted living, or any other long-term care facility, don’t hesitate to seek help. Contact Us today for your free consultation. Together, we can make a difference in the fight against the negligence that is nothing short of elder abuse.

Further reading: Exercising Your Rights as an Assisted Living Facility Resident.