ELDER ABUSE IN NURSING HOMES: DOES BRUISING TELL A STORY?
© Kimberly A. Williamson, R.N., B.S.N.
J.D. Kansas, expected, May 2005
November, 2004
This article provides the law, current cases, websites, articles and book material written on the subject of Elder Abuse in Nursing Homes in general and more specific what role(s) bruising may play in the determination of abuse situations. The materials and information in this article are current, however due to the extensive resources available regarding this topic any information obtained from this article should be verified to insure it is up to date.
WHAT IS ELDER ABUSE?
An ever-growing population of aging adults has found themselves being cared for in nursing homes. Unfortunately, the prevalence of abuse and neglect in these homes has been on the rise. Abuse can come in several forms, one of the most common being physical abuse. Due to the helplessness of many nursing home residents it is all too easy for the staff to abuse patients and often times that abuse never gets reported. Some residents have alzheimer’s and cannot tell what has happened to them. Some residents may be too scared of what will happen to them if they tell on their abuser. Still there are signs that should be watched for that indicate something has gone wrong. A resident may go into depression, become agitated or withdrawn, or embarrassed about what has happened. Some may not even realize they have been mistreated. Studies have been done to determine what factors were prevalent most often in abuse done by nursing home staff. Among those factors stated were being overworked, family problems at home or being on drugs themselves; however, some people are just simply evil. In the nursing home setting often times there is not a witness to the abuse so the only way it gets noticed are the effects left behind on the patient.
Physical abuse can manifest itself in several ways, but there are some classic indicators that have been derived from medical literature. Common signs include: bruises, black eyes, lacerations, welts, broken bones, burns, open wounds, wounds in various stages of healing, sprains, and the list goes on. Specifically bruises and discoloration on inner arm/thigh, thumb/finger prints, choke marks, presence of old and new bruises in the same place, different colored bruises, and suspicious shapes caused by coins, cords, belts, or restraints. A bruise, also called a contusion, is formed because the soft tissues of your body have been bumped. A blow breaks small blood vessels near the skin’s surface and a small amount of blood leaks out under the skin. The trapped blood appears as a black-and-blue mark, a bruise. Bruises go through color changes as the body begins to heal itself. This is the chemical process your body goes through to repair itself.
First you will notice a bump that looks red or purple and is tender. This might swell from the blood collecting under the tissue. After a couple of days, the bruise will turn blue or even black in color. After 5 to 10 days, it may look green or yellow. After 10 to 14 days, the bruise will likely turn brown, and then get lighter until it fades away. Most bruises will disappear after two weeks, but in the elderly this process may take longer. As you age your skin tends to become thin in part because the layer of fat under the skin thins out. This layer is what protects the blood vessels. Also, long-term exposure to the sun can damage your skin similar to the process of aging, so it leaves your skin more susceptible to bruising. Medications for various ailments can cause your skin to be more fragile and become bruised easily. Malnutrition also plays a part in bruising easily.
Unfortunately, in nursing homes data suggests that most
bruising is attempted to be excused away by the fact that residents are elderly,
have fragile skin, and are prone to bruising that is not related to negligence
or abuse. It is suggested that
residents may frequently bump into things while walking, accidentally hit their
arms or legs on the rails of their beds, or that some medications they must take
makes them at much higher risk of bruising than others. Due to all these things, you can see why
it is very important to determine the cause of a resident’s bruising to ensure
that no abuse has taken place.
Elder abuse of residents has been defined in Kansas as abuse, neglect or exploitation of residents. K.S.A. 39-1401 states that “abuse” means any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to a resident, including: infliction of physical injury… K.S.A. 39-1402 states the need of protective services; persons required to report and the contents of that report and the penalty for failure to report. K.S. A. 39-939 states abuse as an unlawful act. Abuse is also prosecuted under criminal statutes. See Statutes section below for the cite.
If nursing homes participate in Medicare and Medicaid programs they must comply with certain requirements for quality of care. These regulations are set forth in the U.S. Code of Federal Regulations – 42 CFR Part 483. These regulations list what a nursing home MUST do. In summary, a nursing home must provide comprehensive assessments, have sufficient nursing personnel, document the required assessments in the clinical record and develop an individualized plan of care that specifies the care that must be provided. If a nursing home willfully fails to provide any of these required regulations, the nursing home may have violated federal and state laws. States have enacted their own laws regarding nursing homes. These state laws must be at least as stringent as the federal laws; some states even enact tougher laws to protect residents. If the nursing home was being reimbursed by Medicare or Medicaid for the resident’s stay, violating 42 CRF Part 483 may mean the nursing home has submitted false claims to the government.
These regulations can be accessed at: www.nursinghomeabuse.com/brgi2.html-
BIBLIOGRAPHY
A. Kansas Statutes
B. Federal Regulations
C. Case Law- Kansas and Missouri
D. Law Journal and Law Review Articles
(ALR, AMJUR POF, Causes of Action)
E. Medical Journal Articles
F. Links to useful Websites
G. Government Documents
H. Books
I. Other Articles
A.
KANSAS STATUTES
K.S.A. § 39-1401 –
Abuse, neglect or exploitation of residents; definitions
K.S.A. § 39-1402 –
Abuse, neglect or exploitation of residents; reporting abuse,
neglect or exploitation or need of protective services;
persons
required to report; contents of report; posting notice of
requirements of act; penalty for failure to report
K.S.A. § 39-1430 – Abuse, neglect or
exploitation of certain adults; definitions
K.S.A. § 39-939 –
Unlawful acts.
K.S.A. § 21-3408
- Assault
K.S.A. § 21-3412 - Battery
These statutes can be accessed at http://www.kslegislature.org/cgi-bin/statutes/index.cgi
B.
FEDERAL REGULATIONS
42 CFR § 483 - Requirements for Long-Term Care
Facilities.
The Code of Federal Regulations is the codification of general and permanent
rules published in the Federal Register by the executive departments and
agencies of the Federal Government. The Code of Federal Regulations (CFR)
can be accessed at http://www.access.gpo.gov/nara/cfr/waisdx_03/42cfr483_03.html
C.
CASE LAW – KANSAS AND MISSOURI
Kansas:
1. Mellies v National Heritage, Inc., 1981 – 6 Kan. App.2d 910, 636 P.2d 215. - this case points out that a private hospital is bound to exercise toward a
Patient such reasonable care as the patient’s known condition may require, the degree of care being in proportion to the patient’s known physical and mental ailments. The extent of care owed depends on the particular circumstances and a similar community standard applies to nursing homes. (See also PIK – 123.02)
2. Hoover (estate of Moore) v Innovative
Health of Kansas, Inc. – 26 Kan
App. 2d
447, 998 P.2d 287, 1999.
- this case is mainly about economic damages and the cap put on them. Although
it does mention bruising.
Missouri:
1. State of Missouri v Kaiser, III,
American Healthcare and Claywest House
Health Care. 139 S.W. 3d
545.
- this case is about failure to report elder abuse. When the family questioned the
Nursing home staff about the bruises, no one could offer an explanation.
The Court held that the administration of the nursing home was negligent in
failing to report abuse that was known. This case also had two statutes, one stated “immediately report” abuse and the other “report in a reasonable time”. The Court held that there was no conflict here, and the prosecutor chose “immediate reporting” to charge the nursing home.
2. Guffy v Integrated Health Services, 1
S.W. 3d 509, Mo App. W.D. 1999
- the family of a nursing home resident filed suit because of unexplained
Bruises. The Ct held that res ipsa was not available here because “more often
than not” the bruising could not be shown to be a result of failure of the home
to exercise due care. However, the court reversed as to the genuine issue of
material fact whether the nursing home’s negligence caused the resident’s
injuries, and allowed the case to go to trial.
D.
LAW JOURNAL AND LAW REVIEW ARTICLES
1. Whitney
B. Damron, What should lawyers know from
the 2003 Kansas
Legislative Session? 72-Aug J. Kan. B.A. 16, (2003).
- Summary of legislation enacted by 2003 legislature provided by the Kansas Bar
association to keep attorneys informed. Transfer to Department of Aging the
administration of the Adult Care Home Licensure Act, amends Kansas statute
pertaining to reporting abuse and creates a new law to designate both SRS and
law enforcement the duty to receive and investigate reports of adult abuse.
Very useful for attorneys.
2. Robin P.
Bravchok, Nursing Home Tort Reform and
Ohio House Bill 412: Why
Have we abandoned our neglected and abused elderly population?, 50 Clev.
St. L. Rev. 645, (2002-2003).
- Ohio’s nursing home reform bill left behind the rights of abuse and neglected
elderly population. HB 412 stripped elderly nursing home residents from their
ability to sue negligent nursing homes and hold them accountable for substandard
care. This article is a stark reminder of the need to monitor nursing home
reform.
3. Jennifer Gimler Brady, Long-Term Care Under Fire: A Case for Rational
Enforcement, 18 J. Contemp. Health L. & Pol’y 1, (Winter 2001).
- Nursing home compliance with federal quality standards appears to have
resulted in little headway against the pattern of serious and repeated non-
compliance. The new zero tolerance approach to nursing home enforcement is
coming at a time when funding is being cut and may leave many residents
without a home at all.
4. Troy J. Crotts, The Nursing Home Resident’s Rights Act – A
Good Idea Gone
Bad!, 26 Stetson L.Rev. 599, (Winter 1996).
-Florida created the “Residents’ Rights Act” to combat health hazards and
deficiencies in homes, however it created a statutory scheme that may have a
punitive impact on nursing home facilities. A note for attorneys in being fair
to nursing homes.
5. Robert J. Rice, MA, JD, Nursing Home Liability, 24 Am. Jur. Proof of Facts 3d 73,
(August 2004).
- Geared toward attorneys, this article has damages, model interrogatories,
elements of proof, and testimony of various players in a nursing home
negligence case. Very helpful.
6. Roderick J. Mortimer, JD, Cause of Action Against Nursing Home for
Injury to or
Death of Patient, 9 Causes of Action 343, (February 2004).
-Cause of action against a nursing home for injury to or death of a patient.
A Prima Facie case, Defenses, Parties entitled to recover, jurisdiction, statute of
Limitation, expert testimony and recovery. Very helpful for an attorney
7. Karl A. Menninger, Proof of Abuse, Neglect or Exploitation of Older Persons,
53 Am. Jur. Proof of Facts 3d 1, (August 2004).
- This issue may arise as a criminal prosecution or as a civil action against family
members of older persons, paid or unpaid caregivers, or employees or operators
of nursing facilities.
8 Laurent B. Frantz, LLB, LLM, Patient Tort Liability of Rest, Convalescent, or
Nursing Homes, 83 A.L.R. 3d 871, (1978-2004).
- Analyzes cases dealing with liability of rest, convalescent, or nursing homes
for unintentional torts to their patients. Kansas is represented here.
E.
MEDICAL JOURNAL ARTICLES
1. Elder Abuse: Is every bruise a sign of abuse? Mt. Sinai Journal Med 2003 Mar,
70(2): 69-74.
-It is estimated that each year between 1 ½ and 2 million older adults are abused.
This case study represents the difficulty in recognizing and managing elder
abuse, and states that physicians are in an ideal position to recognize this problem.
2. Burgers or bruises? Being assaulted shouldn’t be part of a
nurse’s aides job
AmJNurs 2004 Sep 1, 04(9): 13.
- (brief to follow)
3. When caring leaves bruises: the effects of staff education on
resident aggression.
JGerontolNurs1995 Nov. 21(11) 7-16.
- (brief to follow)
F.
LINKS TO USEFUL WEBSITES
1. Kansas Department of Aging - www.agingkansas.org/kdoa/
A. Programs: alzheimer’s helpline, elder rights protection, long-term care,
Nursing facility survey and certification…
B. FAQ – Nursing Facilities
C. Access to Kansas Open Records
2. Kansas Department of Health and Environment - http://www.kdhe.state.ks.us/
A. Limited site for Elder Abuse, but it does have Elder abuse hotlines and
some forms available
3. The National Elder Law Network - http://www.keln.org/
A. Nursing Home and the Rights of Residents (Gail Edson, May 1996)
B. Primary Material
a. Elder law journals, articles, links, forms, govt services
C. Legal Databases
a. elder abuse and neglect, forms, nursing homes and rights of
residents…
D. Selected guides to legal resources
a. Univ of KS law library, findlaw…
These particular sites can be accessed at http://www.neln.org/sitemap.html
4.Nursing Home Abuse and Neglect Information Center - Bauman & Rasor Group, an
Investigative and consulting firm that assists law firms in the investigation/litigation of federal qui tam lawsuits and state wrongful death, abuse and neglect actions.
Federal and State laws regulating Nursing homes –
www.nursinghomeabuse.com/index.html
* 42 CFR Part 483 – Nursing homes must: (See above – Statutes)
5. Your Elder Abuse Resource: Indications of Nursing home neglect: bruising or
Broken bones. http://www.bed-sores.info/
From Childress & Charpentier, PA, attys at law.
- Lists signs of abuse.
6. Elder Abuse Foundation - http://www.elder-abuse-foundation.com/index.html
- This site is a wealth of information. Here is a brief list.
A. Signs of Elderly Abuse - unexplained bruises, cuts, burns…
B. Different forms of elderly abuse
C. Results of elderly abuse
D. Definitions
E. Nursing home regulations
F. Elderly resources
G. Contact an Elderly abuse lawyer
There are also links to various nursing home abuse resources like
* National Citizens coalition for nursing home reform
* HCFA’s nursing home search
* Nursing home abuse resource
* National center on Elder abuse.
7. Elder Law Library – LexisNexis Matthew Bender Online
National Academy of Elder Law Attys – NAELA
* Search “elder abuse in nursing homes” retrieves:
a. California Supreme Court rules elder abuse remedies apply to
nursing homes
b. The Elder Justice Act
c. Nursing home litigation and the elder law attorney
d. Violation of Nursing Home Regulations supports finding of elder
abuse (National Senior Citizens Law Center newsletter)
8. Joint Commission of Accreditation of Healthcare Organizations
This site only listed the information on how to become accredited or certified
by JCAHO. The goal stated was to help nursing homes and skilled nursing
facilities to integrate quality improvement principles in their daily operations
to improve resident health outcomes. It seems to me this has not yet become
reality since the abuse in nursing homes is so extreme.
G.
GOVERNMENT DOCUMENTS
1. United States General Accounting Office – Report to Congressional Requesters
Nursing Homes – More Can Be Done
to Protect Residents from Abuse,
(March 2002).
- 1.5 million elderly and disabled individuals residing in nursing homes are
highly vulnerable. There is growing concern that the individuals to whom their
care has been entrusted are those who are abusing. There are a variety of federal,
state and local agencies, including law enforcement that typically play a part
in investigating instances of resident abuse. The recently renamed Centers for
Medicare and Medicaid Services (CMS), formerly the Health Care Financing
Administration (HCFA) – within the Department of Health and Human Services
(HHS) is responsible for establishing standards that nursing homes must meet to
Participate in the Medicare and Medicaid programs.
Results: abuse not reported promptly. Local law enforcement seldom
summoned to nursing homes to immediately investigate. Abuse not reported to
State survey agencies’ as required. Safeguards to protect residents from
Potentially abusive persons are insufficient at both federal and state levels.
This can be accessed at http://www.gao.gov/new%20items/d02312.pdf
H. BOOKS
1. Wood, Molly M., Kansas Long-Term Care Handbook. Topeka, Kan.: Kansas
Bar Association, 1999 (KBA Practice Handbook)
-this is a comprehensive source for all aspects of Long-Term Care. Chapter 6 Adult Care Homes contains Nursing Home Reform Act of 1987 and Amendments, Federal law, home licensure laws, Tort Litigation, OBRA Violations, Practice Tips. Section IV. Abuse, Neglect and Exploitation of Adults in Residential Care Facilities includes scope, background, State and Federal laws, Mandatory reporters, KDHE duty to investigate, and relevant criminal acts.
2. Gallanis,
Thomas P., Dayton, A. Kimberley, Wood, Molly M., Elder Law:
Readings,
Cases, and Materials. 2000.
-this presents a wide overview of elder issues, ranging from representing
the elderly, discrimination, retirement, property management, protection
and guardianship, end of life issues, etc. There is a small section in Ch. 8
D, Nursing Facilities that has Nursing Home Residents’ Rights, Nursing
Home Reform Act of 1987, and a short section on other remedies that is
of some help with this issue but most of it is contained in the book above.
I.
OTHER ARTICLES
1. Sherri Bourg
Carter, Child Abuse, Elderly Abuse, and
Domestic Violence
Litigation, 28 Champion 21 (Sept/October, 2004).
- this speaks to the “hearsay” problems of testimony in abuse cases
2. Sean P.
Morgan, Prosecution of Elder Abuse,
Neglect & Exploitation:
Criminal Liability, Due Process and Hearsay, American Prosecutors
Research Institute, ( July 2003).
- criminal liability issues, constitutionality of elder neglect statutes, hearsay
3. Mary M.
Conlin Shaw, PhD, ARNP, CS, Nursing Home
Resident Abuse by
Staff: Exploring the Dynamics, Journal of Elder Abuse & Neglect; 9,4:
ProQuest Nursing Journals, (1998) p. 1.
- this article notes two types of abusers, their characteristics and their likelihood
of abusing.
4. Maj Robert M. Kruger, USAF, MC; Capt Christopher H. Moon, USA, MC
Can you spot the signs of elder mistreatment? Vol 106, No. 2, Aug 1999,
Postgraduate Medicine.
- incidence of elder mistreatment expected to increase as baby boomers age.
Defines mistreatment, types, importance of detection, risk factors and physical
factors and the importance of detection.
5. Mayo Clinic.com. Bruising easily: Cause for concern?
- how a bruise forms, why older adults bruise easily, medications as a cause.
http://www.mayoclinic.com/invoke.cfm?id=H100355.
6.
MedicineNet.com. Bumps & Bruises, Why Older People
Bruise Easily, Elder
Abuse a Pervasive Problem.
-generalized information on bruises, why older people bruise easily and elder
abuse by caregivers is frequent.