As published in The Pinellas County Guardianship Association Newsletter, April 1998; The St. Petersburg Times, August 10, 1998; The Tampa Tribune, May 15, 1999.
By: Thomas P. Scarritt, Jr. and Thomas S. Harmon
In 1980, a Dade County Grand Jury investigated the quality of health care in Florida’s nursing homes. The results were shocking. Sixty percent of the nursing home facilities investigated were found to provide "unacceptable or consistently very poor care." In fact, the investigation described "health hazards and deficiencies in patient care that allegedly have been allowed to continue for years." The Grand Jury further concluded that the Department of Health and Rehabilitative Services ("HRS") licensure and inspection enforcement was inadequate in addressing the problem of sub-standard care. The Grand Jury found that sanctions against nursing homes were invoked infrequently, "timidly and ineffectively." An even more troubling conclusion was that once deficiencies were identified by HRS, they were rarely pursued and effective corrective action was scarce.
Upon being presented with the Grand Jury’s findings, the Florida Legislature took action. The Legislature created a list of rights belonging to each nursing home resident and created a statutory cause of action to enforce those rights. Similarly, the Legislature created a list of rights belonging to each resident of an Assisted Living Facility (ALF). Sections 400.022 and 400.428 of the Florida Statutes set out the Residents Bill of Rights for nursing home and ALF residents respectively. The Residents Bill of Rights demands zero tolerance for abuse and neglect in either nursing homes or ALFs. By law, every nursing home and ALF must provide the resident or guardian with a copy of the mandated resident rights when the resident is admitted.
Paramount to the Bill of Rights is the right to "receive adequate and appropriate health care" and to "live in a safe and decent living environment, free from abuse and neglect." But what is "abuse and neglect" and, more important, how do guardians, family members and friends know when a loved one is the victim of abuse and neglect?
What to look For - The Telltale Signs of Abuse and Neglect
Guardians, family members and friends are the front line warriors against elder abuse and neglect. Abuse and neglect can be overt and easily detected or covert and subtle. Elder abuse can be physical, mental, verbal, or sexual and can go undetected for long periods of time. Even in what may seem to be a stable environment, elder abuse and neglect could be an ongoing problem.
One of the most common and noticeable signs of neglect are skin lesions, also known as pressure sores or decubitus ulcers. Pressure sores typically form on the coccyx area and are caused by infection or rotting away of the skin due to prolonged pressure on the buttocks. Pressure sores can result when the nursing home staff fails to turn the patient as frequently as needed.
Other common signs of abuse or neglect that you should look for include: contractures or joints becoming fixed, avoidable by simple exercise; weight loss due to malnutrition; unexplained injuries including bruising or skin tears often resulting when residents are pinched for discipline; dehydration or constant thirst; and infections often caused by extended exposure to urine or feces. More subtle signs linked to mental or sexual abuse and neglect include changes in cognitive status, mood swings, social isolation or withdrawal, frequent crying, paranoia and changes in thought patterns.
Physical and chemical restraints can be used by staff members in abusive ways. If the resident is restrained, be sure to determine why restraints are in use. Simply stated, restraints are sometimes used overzealously. Discuss with the physician any medical diagnosis that warrants the use of restraints. Insist that the least restrictive device be used and that alternative measures be implemented prior to the use of any restraints. The resident should be evaluated by the interdisciplinary team and an occupational or physical therapist prior to the application of any restraint device. Chemical restraints should be implemented only with the order of a physician and only to treat a medical condition.
How to Prevent Abuse and Neglect in Nursing Homes and ALFs
To prevent abuse and neglect in nursing homes and ALFs, guardians and family members must be proactive and vocal in the care of the resident. Let the staff at the nursing home, the physician and the nursing home administrator know that you will be watching for any problems and will immediately take action. Insist that the facility notify you of the use of any chemical or physical restraints. Tell the staff to notify you of every injury or change in condition that occurs with the resident. The facility is required by law to notify a family member or interested party of any injury or significant change in condition. Complain to the Director of Nursing and Administrator if you do not get immediate satisfaction related to your complaints or if your concerns go unheeded by the staff. Document every incident or injury in a journal and by photograph or videotape. Include in your journal entry the date, time and the names of any staff member who was involved. Call the Ombudsman representative and voice your complaints. Request that the Ombudsman update you after he or she investigates. If you feel that a resident is being in any way abused or neglected, call the HRS hot line for elder abuse and report the act or acts immediately.
Additionally, there is legal recourse that can and should be taken to protect the resident from harm. Sections 400.023 and 400.429 of the Florida Statutes provide that any resident whose rights are violated shall have a cause of action against the facility and may recover both actual damages and punitive damages. Moreover, the lawsuit may be brought by the resident or his or her guardian or by the personal representative of the estate of a deceased resident. Chapter 400 lawsuits provide you not only the opportunity to protect the resident you love, but also to make a difference in the care of other residents for many years to come.
Florida has a growing elderly population and we are all fortunate that many nursing homes provide excellent care. To these nursing homes, we salute and commend you for your service. Unfortunately, the tragic reality is many other nursing homes provide woefully inadequate care, and allow abuse and neglect to run rampant. To these nursing homes, it is incumbent upon family members and legal guardians to recognize the telltale signs of abuse and neglect, take immediate action, and make a difference.