California Elder Law Attorney Blog

Ninety - three years old Bettina D was rushed to the Emergency Department of a local hospital. Upon examination, the patient was suffering from pneumoniia, acute hypertension, malnutrition, dehydration, and bedsores which indicates substandard care..

Aggressive medical intervention returned the patient's soaring blood pressure to a normal range, but her caregiver, an adult offspring, demanded Bettina's immediate discharge from the hospital. The patient was returned to her own home and continued to receive minimal medical and physical care from her fiduciary. Bettina D is a victim of elder abuse.

What is Senior Abuse?

According to the World Health Organization, "abuse of older adults may be a single, or repeated acts or lack of appropriate action occurring with any relationship where there is an expectation of trust which causes harm or distress to an older person". It constitutes emotional, financial exploitation, neglect or abandonment, physical, and sexual abuse.

Motivations Behind Elder Abuse

There are many driving forces that causes this type of offense. They include the following elements:

•perpetrator's own financial problems. The desire of the caregiver to resolve this dilemma and easy access to the victim's funds or assets often leads to financial exploitation.
•the fiduciary stands to inherit the victim's assets and feel justified in taking an advance on a forthcoming legacy, or controlling assets that are believed to be almost rightfully the perpetrator's own. If the caregiver is an heir, this person may surmise that advanced steps are needed to prevent the exhaustion of their inheritance through medical or other expenditures needed by the victim.

Continue reading "Elder Abuse Motivations" »

As the number and percentage of individuals 65 and over has increased in this country, so has the incidence of elder abuse. Unfortunately, the prevalence and nature of this growing problem has generally remained hidden from public view. It is imperative that both professionals and lay persons become more aware of the scope and many issues surrounding this sensitive topic. This Blog is designed to address many of the concerns surrounding elder abuse ranging from information concerning the incidence of abuse to a discussion of intervention strategies. It is essential that the incidence of abuse and awareness of the range and breadth of various types of abuse be discussed and understood. However, an awareness of the problem of elder abuse is not enough. Therefore, issues surrounding detection of abuse and strategies for prevention and intervention will also be addressed.

Types of Abuse:

Passive and Active Neglect: With passive and active neglect the caregiver fails to meet the physical, social, and/or emotional needs of the older person. The difference between active and passive neglect lies in the intent of the caregiver. With active neglect, the caregiver intentionally fails to meet his/her obligations towards the older person. With passive neglect, the failure is unintentional; often the result of caregiver overload or lack of information concerning appropriate caregiving strategies.

Physical Abuse: Physical abuse consists of an intentional infliction of physical harm of an older person. The abuse can range from slapping an older adult to beatings to excessive forms of physical restraint (e.g. chaining).

Material/Financial Abuse: Material and financial abuse consists of the misuse, misappropriation, and/or exploitation of an older adults material (e.g. possessions, property) and/or monetary assets.

Psychological Abuse: Psychological or emotional abuse consists of the intentional infliction of mental harm and/or psychological distress upon the older adult. The abuse can range for insults and verbal assaults to threats of physical harm or isolation.

Sexual Abuse: Sexual abuse consists of any sexual activity for which the older person does not consent or is incapable of giving consent. The sexual activity can range from exhibitionism to fondling to oral, anal, or vaginal intercourse.

Violations of Basic Rights: Violations of basic rights is often concomitant with psychological abuse and consists of depriving the older person of the basic rights that are protected under state and federal law ranging from the right of privacy to freedom of religion.

Self Neglect: The older person fails to meet their own physical, psychological, and/or social needs.

Evidence that personal care is lacking or neglected
Signs of malnourishment (e.g. sunken eyes, loss of weight)
Chronic health problems both physical and/or psychiatric
Dehydration (extreme thirst)
Pressure sores (bed sores)
Physical Abuse: Overt signs of physical trauma (e.g. scratches, bruises, cuts, burns, punctures, choke marks)
Signs of restraint trauma (e.g. rope burns, gag marks, welts)
Injury - particularly if repeated (e.g. sprains, fractures, detached retina, dislocation, paralysis)
Additional physical indicators - hypothermia, abnormal chemistry values, pain upon being touched
Repeated "unexplained" injuries
Inconsistent explanations of the injuries
A physical examination reveals that the older person has injuries which the caregiver has failed to disclose
A history of doctor or emergency room "shopping"
Repeated time lags between the time of any "injury or fall" and medical treatment

Material or Financial Abuse
Unusual banking activity (e.g. large withdrawals during a brief period of time, switching of accounts from one bank to another, ATM activity by a homebound elder)
Bank statements (credit card statements, etc.) no longer come to the older adult
Documents are being drawn up for the elder to sign but the elder can not explain or understand the purpose of the papers
The elders living situation is not commensurate with the size of the elder's estate (e.g. lack of new clothing or amenities, unpaid bills)
The caregiver only expresses concern regarding the financial status of the older person and does not ask questions or express concern regarding the physical and/or mental health status of the elder
Personal belongings such as jewelry, art, furs are missing
Signatures on checks and other documents do not match the signature of the older person
Recent acquaintances, housekeepers, "care" providers, etc. declare undying affection for the older person and isolate the elder from long-term friends or family
Recent acquaintances, housekeeper, caregiver, etc. make promises of lifelong care in exchange for deeding all property and/or assigning all assets over to the acquaintance, caregiver, etc.

Psychological Abuse: Psychological Signs: Ambivalence, deference, passivity, shame
Anxiety (mild to severe) Depression, hopelessness, helplessness, thoughts of suicide
Confusion, disorientation

Behavioral Signs:
Trembling, clinging, cowering, lack of eye contact
Evasiveness
Agitation
Hypervigilance
Sexual Abuse:Trauma to the genital area (e.g. bruises)
Venereal disease
Infections/unusual discharge or smell
Indicators common to psychological abuse may be concomitant with sexual abuse
Violation of basic rights

Caregiver withholds or reads the elder's mail
Caregiver intentionally obstructs the older person1s religious observances (e.g. dietary restrictions, holiday participation, visits by minister/priest/rabbi etc.)
Caregiver has removed all doors from the older adult's rooms.
As violation of basic rights is often concomitant with psychological abuse the indicators of basic rights violations are similar indicators as those for psychological abuse.
Self Neglect - to be discussed in greater depth below.

Additional Indicators of Abuse or Neglect

Elder is not given the opportunity to speak without the caregiver being present.
Caregiver exhibits high levels of indifference or anger towards the older adult
Overmedication or oversedation.

Continue reading "It Is Imperative and Essential That The Incidences of Elder Abuse and Neglect Be Discussed and Understood" »

In nursing homes, negligent acts by staff account for the majority of injuries and deaths. Nonetheless, there are situations where the intentional acts by a facility in general or by an individual staff member may similarly result in an injury.

Although bed sores (alternatively referred to as: pressure sore, pressure ulcer or decubitus ulcer) may not necessarily be associated with an intentional act, there are many situations where a bed sore developed because of a conscious decision by nursing home staff to ignore patient needs such as: incontinence, shifting patients in bed and ensuring sufficient nutrition and hydration. Similarly, some nursing homes may intentionally contribute to the development of bed sores when they fail to educate staff regarding preventative measure and treatment programs.

The sad reality is that bed sores can be just as harmful to nursing home patients compared with any other type of abuse-inflicted injury. Nursing home patients who develop bed sores must endure a long, painful and de-humanizing treatment and recovery process.

Steps to take after you notice the development of bed sores during an admission to a nursing home:

•Obtain medical treatment for your loved one immediately
•Document the injury, record dates, times, staff names and photograph or videotape the wound itself

Continue reading "Bedsores, Pressure Sores and Decubitus Ulcers Develop Because of The Conscious Decisions To Ignore Patients Needs" »

Amputation, or the surgical removal of an extremity, may occur among nursing home residents. Most amputations are performed in order to control pain or the spread of infection or disease in the affected limb. What many people do not realize is that many amputations that affect nursing home residents may be prevented. If you or a loved one is a nursing home resident and has had a limb amputated we strongly encourage you to consultSteven Peck's Premier Legal toll free at 1.866.999.9085 to talk with an experienced nursing home abuse and neglect attorney.

Causes of Amputation in Nursing Homes
Amputation of a limb can result from several different conditions. Here are a few of the more common causes:

•Decubitus Ulcers (bed sores) - Also known as pressure sores or bed sores, these skin ulcerations can quickly lead to infection and amputation if not caught and treated early. Residents with limited mobility are especially prone to these sores. Diabetics are also at high risk. Nursing home residents must be moved routinely to prevent development of these ulcerations says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

•Diabetes - A large number of amputations among nursing home residents are diabetes related. Many of these are preventable. Some estimates state that as many as 25% of nursing home residents have diabetes. Advanced diabetes often leads to lack of sensation in the extremities and poor circulation. Even the most minor cuts, burns or other wounds to the feet or hands can quickly become infected if left untreated. Federal and state regulations require that diabetic nursing home residents must have their extremities constantly checked in order to prevent such infection.

•Trauma - Inadequate supervision or assistance can result in falls. There have been several cases of bone fractures that have gone unnoticed leading to advanced infection and amputation. Many cases of thermal trauma (burns and frostbite) have also been reported. In some cases, nursing home patients have been allowed to wander off (elopement).

•Other Causes - Undiagnosed cancer, sepsis, or other infections can also result in amputation

There are seven types of elder abuse.

Number one is physical abuse that may include but not limited to such acts of violence as striking with or without an object,hitting,beating,shaking,shoving,slapping,kicking,punching.In addition to that is the inappropiate use of drugs,force feeding and the use of restraints.Any use of physical punishment of any kind,also is abuse.

The second kind of abuse is sexual abuse which is non-consensual sexual contact of any kind with an elderly person,even if the person in capable of giving consent. Which includes but is not limited to,unwanted touching.All types of sexual assult or battery,such as rape,sodomy,coerced,nudity,and sexually explicit photographing.

The third kind of abuse is the emotional or psychological abuse which is the infliction of anguish,pain,or distress through verbal or nonverbal act's,insults,threats,intimatation,humiliation,and harassment.In addition treating an older person like an infant,isolating an elderly person from family,friends or even from Regular activities,even giving them the silent treatment or inforcing social isolation are just a few examples of elder abuse thats happening all around us.

The fourth and most common type of abuse is neglect which is the refusal or failure to provide or to fullfill an obligation or duty to the elderly person or person's.Also it's a failure to provide the necessities of life such as food,water,clothing,shelter,personal hygiene,medical care,comfort and safety,medicine and other essentials.

Number five is abandonment of an elderly person by anyone who has assumed the responsibility of providing care for the elderly person.Or by a person who has physical custody of an elder.It could be a grand daughter,grandson,brother,sister,or any one that has been order guardianship from the courts.

Last but not lease is the Financial abuse and material exploitation that illegal or improper use of an elder's fund's property or other asset's.Such as cashing ones checks without permisson or authorization.Forging the person signature,misusing or stealing one's money or possession's,coercing or deceiving a person into signing any document,or contracts,will's,or improper use of conservatorship,guardianship or power of attorney.

The last of abuse issue is self neglect,this is characterized as the behavior of an elderly person that threatens his or her own health or safty.This pertains to an older person refusal or failure to provide themselves with adequate food,water,clothing,shelter,personal hygiene,medication when indicated and safty precautions.also this includes a mentally competent older person,who understands the consequiances of her or his decisions,make a concious and voluntary decision to engage in acts that threatens his or her health or safty as a matter of persons choice. If anyone suspect's elder abuse or if you know of some that's in immediate danger,or is neglect,or there's exploitation.I urge you to call 911,or to call your local police. Also there's a help hotline that you can call. to Steven Peck's Premier legal at 1-866-999-9085, the line is open 24 hours a day.

Pressure sores (bed sores) are painful red spots on the body that are especially common among the elderly and disabled. These spots are more likely to occur on bony regions of the body. Pressure sores are caused from pressure placed on a spot on the body cutting off the oxygen supply to that area. If the oxygen supply is not quickly replenished a pressure sore can develop. These sores can occur very quickly, usually with in a couple hours. There are a few, easy precautionary steps you can take in order to eliminate the risk of creating painful pressure sores says California Elder Law Attorney Steven C. Peck.

The best precautionary step to take to ensure no pressure sores develop is to lift or move the person frequently. This ensures the pressure is relieved to all areas of the body frequently. If confined to a wheel chair, simply changing position can relieve the built up pressure. When confined to a bed, oxygen flow can be replenished my moving the person into a different position, like on to their side or simply shifting them. This step can greatly reduce the possibility of pressure sores developing.

It is important when trying to prevent pressure sores from developing that the person is placed on a soft surface. Hard surfaces can increase the pace at which a pressure sore develops. Soft surfaces are not only more comfortable but do not produce an extreme pressure source. Air cushions are available for purchase. These are good to have because they can automatically adjust their own pressure in certain areas to decrease the risk of pressure sores. Plus they can provide added comfort.

When trying to prevent pressure sores it is very important to double check and make sure there are no hard objects resting on the body, such as a bar from a wheel chair. These objects are not only uncomfortable but can produce extremely painful sores. Every time you change the person's position make sure you check to see if they are pressed up against any hard object and nothing is digging into any spot on their body.

The person's body should be looked over daily to check for any possible pressure sores. If any appear to be present it is very important not to place any further pressure on that area. Pressure sores can start out small and turn into massive sores. By following these easy steps the problem of pressure sores is not likely to be a problem for you.

Continue reading "Bedsores, Pressure Sores & Decubitus Ulcers All Can Be Easily Prevented" »

Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Center for Assisted Living, there are over 36,000 licensed assisted living facilities nationwide with an estimated 1 million residents. However, because there is no common definition for assisted living facilities, this number may not adequately reflect the prevalence of these facilities. In fact, in 2002 the National Conference of State Legislatures hailed the assisted living market as one of the fastest growing long-term care options for senior citizens; the number of seniors in assisted living facilities receiving Medicaid benefits has grown nearly 50% over the past few years.

These facilities tend to aggressively market and recruit residents, many times promising staffing levels or services that, in reality, are not available. In an attempt to compete with nursing homes, assisted living facilities are accepting patients with higher acuity. Most major chains promote special Alzheimer's Disease Units, and are accepting patients with significant cognitive impairment. The reality is that many of these facilities have staffing that is inferior to the staffing levels present in nursing homes and simply cannot meet the needs of the higher acuity residents. The end result is that residents throughout the county are suffering from serious injuries due to the neglect and abuse that is taking place in these facilities. Assisted Living v. Nursing Home Care

Assist living abuse and neglect cases and nursing home abuse and neglect cases are similar in some respects, i.e., both involve supervision and care of the elderly, but evaluating the assisted living case involves a greater perception of the differences in the two types of facilities.

1. Standards of Care. The litigation of assisted living abuse and neglect cases, like the litigation of nursing home abuse and neglect cases, can be an effective tool in forcing the industry to comply with proper standards. However, since most states have weak regulations, it often becomes difficult to establish the legal standard of care for a particular facility. Many times a plaintiff may have to fall back on basic community practice nursing standards that will apply when an assisted living facility contracts to provide more than just room and board.

Nursing homes are highly regulated and must comply with the regulations set forth in the Omnibus Budget Reconciliation Act ("OBRA") of 1987[4] (otherwise known as the federal Nursing Home Reform Act) which set minimum standards of care for long term care facilities that receive federal funding. Unlike nursing homes, assisted living facilities are not regulated by the federal government, and the state regulations that do exist are inconsistent and, for the most part, not aggressively enforced.

When considering the basis for liability, one must consider whether the assisted living facility breached regulatory or community practice standards in admitting the resident whose needs may have been too great to be met by the assisted living facility. Many assisted living facilities, especially those with "Specialized Alzheimer's Units" are accepting residents with advanced dementia who would normally be admitted to a nursing home, and possibly even a skilled wing of the nursing home. In such cases, it would be advisable to obtain an expert who will evaluate the resident's condition and the relevant admission criteria. Such an evaluation will likely be beyond the abilities of a lay person, although many admissions decisions in assisted living facilities are being made by non-medical personnel.

Almost all states prescribe some limitation on who can be admitted into an assisted living facility. For example, Virginia regulations prohibit adult care facilities from admitting or retaining patients with a variety of conditions, including ventilator dependency, dermal ulcers stages III and IV, those requiring intravenous therapy or injections directly into the vein, nasogastric tubes, and those who require continuous licensed nursing care. 22 VA. ADMIN. CODE § 40-71-150 (West 2003). Other states contain similar limitations with prohibitions aimed at excluding patients with a demonstrated need for skilled or specialized care.[5] Assisted living facilities do not provide skilled care; consequently, they are uniformly required to screen patients to determine the level of care needed and reject patients whose needs exceed their capacity. State regulation of assisted living facilities is lax and, for the most part, ineffective. Only a few facilities in the Commonwealth of Virginia have been denied a license for regulatory noncompliance. It is the opinion of this author that weak regulatory enforcement is in part due to inadequate regulations that do not adequately specify industry standards.

2. Experts. To litigate a nursing home abuse and neglect case it almost always requires the use of medical experts who will define the standard of care and address breaches in the standards. As assisted living facilities are generally not considered health care providers, one may question whether an expert is necessary. This will obviously depend on the facts of your case. But in almost every case, at the very least, you will require an expert to establish causation and damages. Since many times injuries in assisted living facilities result in the patient requiring long term care in a nursing home, you may also want to consider obtaining a life care plan from a qualified expert.

Once you have obtained records, you should have the case reviewed by a nursing expert you can rely upon. Unlike nursing homes where there DON and Administrators are RNs, many of the nurses who work in the assisted living arena are LPNs and lack the background that you may be looking for in an expert. Finding talented nurse experts who are actively involved in assisted living care is a challenging task.

1. Facility Records. The first step in assessing liability against an assisted living facility will be to obtain the records from the facility and the contract that was signed. The contract will likely define the duties undertaken by the facility. Most assisted living facilities have various levels of service. Level one might be the basic service which would include only room, board, meals and activities. Level four, or the highest level of service, might include resident assessment, care or service planning, medication administration, and dementia and nursing care. The standards applied by these facilities could be analogized to standards of care applied by a nursing home that was not providing skilled care.

2. Freedom of Information Act. In addition to obtaining the records, you will need to do a Freedom of Information Act request. This will help you identify the corporate entity that actually owns and operates the facility and may also allow you to see surveys or inspections that were done on this facility. The license should always be available, and may include information about the scope of services that the defendant facility is authorized to provide. Do not expect the surveys or inspection reports to contain the wealth of information that are available for nursing homes. Many times surveys are performed by the local Department of Social Services and do not include assessments of whether or not these facilities are complying with regulatory standards of care.

3. Case Review. The following are some factors to consider early on in deciding whether or not to prosecute an assisted living facility for negligence or abuse:

a. The nature of the resident's condition upon admission. If she was mentally competent and independent with acts of daily living, you will confront significant problems with contributory negligence and comparative fault defenses.

b. The nature of the contract and duties assumed by the facility. If they only agreed to provide room, board, and meals, the defense will argue their duties are analogous to that of a landlord in an apartment building.

c. The quality of the relationship between the personal representative and the victim. If the victim is deceased, this may take on a greater importance as the nature of that relationship may define your damages under the applicable wrongful death act.

d. Whether the family members make good fact witnesses, appear genuinely outraged by the facility's conduct, and complained and/or removed their loved one from the facility.

e. Whether the facility had serious staffing shortages or a pattern of neglecting their residents.

f. Did the victim suffer a significant injury in the facility that adversely affected the quality of her life for the future, or caused her death?

g. Do you have strong witnesses and powerful exhibits? Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of that pressure?

h. Do you have significant economic specials that are not encumbered by a Medicare or Medicaid lien?

i. Is the defendant a charitable organization, religious affiliate, or part of a large assisted living chain?

C. Theories of Liability

With weaker regulation, variety in industry standards, and market competition, it is not surprising that the U.S. General Accounting Administration, in 1999, identified problems in assisted living facilities that included inadequate or insufficient resident care, insufficient trained staff, improper medication administration, and not following admission and discharge policies required by state regulation. A 2000 study by the U.S. Department of Health and Human services found that a high percentage of the staff at assisted living facilities were not knowledgeable about the normal aging process and at least 60% of the staff did not know how to properly manage difficult behavior among assisted living residents.Liability: Improper Admission. Many times, liability based upon an improper admission results when someone is admitted into a facility that is not locked down or enclosed. Many residents with dementia have a tendency to wander and they should simply not be admitted into facilities that are not locked down or do not have appropriate wander guard systems and/or alarms on the doors.

In Selvin v. DMC Regency Residence, Ltd., 807 So. 2d 676 (Fla. Dist. Ct. App. 4th Dist. 2001) a resident of an assisted living facility wandered off and was found dead in a nearby canal. Plaintiff's complaint alleged two different theories of liability: the first was a statutory wrongful death action and the second was based on alleged violations of statutes relating to assisted living facilities. Plaintiff alleged that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish elderly patients of the plaintiff's decedent's classification and condition. At the time of trial, plaintiff sought to introduce expert testimony about specific safety precautions that were the industry standard and further sought to show that the facility should have built a fence to prevent elders from wandering near the dangerous area of the canal. The trial court precluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public. The Appellate Court reversed, finding that the facility undertook to furnish certain services of care and security which created such a duty of protection. The Appellate Court also held it was an error to exclude testimony regarding industry standards of what could have been done to protect these impaired residents from falling into the canal.

1. Liability: Falls. Another common area of liability in assisted living facilities involves falls. Expert testimony may not be required in such cases. See, Walker v. Southeast Alabama Med. Ctr., 545 So. 2d 769 (Ala. 1989).[6] However, fall assessment and fall prevention planning is usually done by a nurse or other medical provider and it may be advisable to have an expert address this issue. In large part, the need for an expert will be determined by the facts of your particular fall. If the staff simply dropped the resident during a transfer, an expert may not be necessary. However, if the resident came in to the facility with multiple risk factors for falling[7] which were never assessed or care planned and he fell one day while wandering the hallway, you should retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, she will have to testify that if appropriate standards were followed, it would have, more likely than not, prevented the particular fall which caused injury to plaintiff. As this is an area of first impression in many jurisdictions, it is advisable to educate the court with a trial memorandum addressing experts and other issues prior to trial.D. Other Theories of Liability

Attorneys who prosecute assisted living facilities have an opportunity to be far more creative in the prosecution of these claims, given the broad range of theories that are available. Below are some typical theories that can be advanced against an assisted living facility.

1. Common Law Negligence. This is probably the most common theory of liability advanced in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pled a traditional malpractice case. You can plead the breach of regulatory standards and/or industry standards which proximately caused injury to your client. As assisted living facilities are not health care providers, they should not be subject to caps or other discovery limitations (i.e., quality assurance privileges) that apply to traditional health care providers.

2. Violations of the Consumer Protection Act. Make sure to inquire of your client what representations were made as an inducement to enter the facility. Obtain the brochures that were handed out by the marketing representative. Most consumer protection statutes provide relief for misrepresentations which were made as an inducement to enter into the consumer transaction. Case law has allowed such theories to be advanced even against health care providers, so there should be no reason that this theory could not be advanced against an assisted living facility.[8] The advantage is that many states' consumer statutes allow for the recovery of costs and attorney's fees.

3. Adult Protection Act. Most states have statutes that have been specifically enacted to protect the rights of elder Americans.[9] Some states, like Tennessee, specifically exempt health care providers from the application of such statutes.[10] As assisted living facilities are not health care providers, these exemptions should not apply.

4. Breach of Contract. Almost all assisted living facilities will make their residents sign a contract as a condition of admission. Scrutinize the contract carefully, as it may contain waivers of liability or waivers of the resident's right to a jury trial. Such waivers can be asserted irrespective of whether one pleads a separate breach of contract claim. Under the laws of most states, contract damages will be limited to foreseeable economic damages, so it would be disadvantageous to plead this as your only theory of liability. However, the contract may have required that certain services be delivered to the resident (i.e., activities, assistance with acts of daily living, 24 hour supervision) which were not, in fact, provided. The resident may have suffered no physical injury from the failure to deliver such services and the defense will argue that such evidence should be excluded at the time of trial. With the contract theory properly pled, plaintiff can argue that such evidence is admissible to prove contract damages and recover monies for services which were not provided.

Be wary that the defense may argue that since plaintiff failed to quantify the extent of services that were not provided, any award of contract damages would be based on speculation. As such, you should make an attempt to have your client provide a good faith estimate in percentage terms as to what services were not provided. However, if you have a strong negligence claim based on a discreet event (i.e., a fall causing a hip fracture) you may not want to confuse the jury with a lot of collateral facts and issues that may not have a strong bearing on your damages.

5. Negligent Hiring and/or Retention. Consider this claim where you have intentional torts committed by an employee and some evidence that the defendants knew or should have known that this was a troubled employee. Many assisted living facilities don't adequately screen their employees. This evidence may not be revealed until the discovery process begins and it is essential that you obtain the employee's personnel file early on in litigation so you can amend your complaint if necessary. Depending on the tolling provisions of your individual claim, the cause of action may still relate back because it arguably arises out of the same set of operative facts. It is also a good idea to sue the employee individually. The same defense firm may represent both the employee and corporation, making it impossible to argue that the employee was not operating within the scope of his employment.

6. Wrongful Death. In any case where there is evidence that the facility's negligence caused or contributed to the resident's death, a separate wrongful death claim should be asserted. If there is any good faith basis to conclude that the negligence contributed to plaintiff's death, you should plead both survivorship and wrongful death claims. Any long term care case has greater value if you can argue that defendant's neglect caused plaintiff's death. You may also have separate claims for injury that in no way contributed to the resident's death. Such claims should be pled with your survivorship claims. Research the law in your jurisdiction to determine what forms of damages are recoverable under a wrongful death statute. If you're in one of those unfortunate jurisdictions that allow only economic damages, you may not want to plead a wrongful death claim.

7. Punitive Damages. As the nature of economic damages in an assisted living case may not be impressive, and as your client will likely have suffered from several preexisting conditions that may weaken your compensatory damage claim, you should, whenever possible, plead punitive damages. Successfully pleading a punitive damage claim will also provide you with the basis for exploring defendant's conduct with respect to other residents who were neglected in substantially similar ways to that of your client. Cases from around the country have upheld such punitive damage claims against nursing homes, and there is no reason that such precedent would not apply equally to assisted living facilities. [11]

8. Americans with Disabilities Act/Fair Housing Act. The Fair Housing Amendments Act of 1988 (FAA)[12] prohibits discrimination in virtually all housing and related activities, whether such conduct takes place in the private or public sector. This law is complemented by the Americans with Disabilities Act,[13] which, while it specifically does not include entities covered by the FAA, applies to non-housing functions of a facility, such as common areas, meeting rooms, cafeterias, adult day care, or long term care under Title II (state and local) and Title III (public accommodations) programs

Continue reading "Assisted Living Litigation is Growing Dramatically" »

When a person ages, the skin becomes thinner. Thus, when elderly people become bedridden, bedsores, also known as pressure sores or decubitus ulcers - easily occur. These sores are a result from sustained pressure to a body area which prevents normal blood flow. Without adequate circulation the impaired skin dies says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

The severity of pressure sores can be observed in four distinct stages:

Stage one is where the wound is an irritated red patch of skin that usually dissipates after a short period of time once pressure is relieved. The irritation can become worse until reaching a fourth stage, which involves a large area of skin loss and possible damage to the muscle or even bone. Such sores can be a caregiver's nightmare and cause unimaginable suffering to the patient.

The less mobile your patient becomes, the more attention you must to pay to their skin condition.

When a patient is wheelchair-bound, you may think your only concern will be bedsores on your loved one's bottom. Where in fact, you will also need to pay close attention to the shoulder blades, the spine and the back of their arms. When they become bed-bound, you need to keep an eye on their ears and along with the back and sides of their head, actually any point on the body where pressure occurs.

Prevention will always be a caregiver's best defense. Examining the skin while bathing should become a daily custom. Once the patient has become incontinent, your constant vigil becomes even more critical. The skin staying moist only enhances the risk of bedsores, also, creating a higher contingency of infection.

Open wounds may take forever to heal. They must be attended to every day. Your loved one's doctor can design a plan for you to follow, but the first step of treating any bedsore is to relieve any pressure that caused it. If patients cannot reposition themselves, someone will have to turn them throughout the entire day possibly up to every two hours. Caregivers need to watch out for things like wrinkled sheets, the plastic of incontinence pads or any obstacles that could be restricting circulation.

Another situation to worry about is drastic weight loss. With Alzheimer's or any appetite diminishing diseases, a caregiver is constantly trying to get a patient to eat. Finally, the patient's birthday suit seems to have become two sizes too big.

Current technology has brought forward some great devices to assist with patient care; air or water-filled cushions, specialized mattresses and other helpful products. See if you can get some of these products prescribed to them by their physician. Most insurance policies will cover the cost.

One rule you should always follow is to contact his or her doctor immediately if you notice the sore has broken open. This is where the wound becomes extremely vulnerable to infection.

When visiting a loved one in a nursing home or a hospital, don't hesitate to check the patient's skin. If you notice anything that concerns you, talk with a member of the nursing staff or the facility director. Inform them you'll be back daily to check on their condition.

Continue reading "Bedsores, Pressure Sores & Decubitus Ulcers: Nothing To Be Taken Lightly" »

On March 23, 2010 the president of the United States signed into law landmark health care reform legislation. Many are unaware that included in this legislation are the Elder Justice Act and the Patient Safety and Abuse Prevention Act andthat this is "the most comprehensive federal legislation ever to combat elder abuse, neglect and exploitation." says California Elder Abuse Attorney Steven C. Peck.

Elder abuse, neglect and exploitation are a national tragedy and still very much an unrecognized problem, with consequences that can be devastating, even life-threatening. The population of older Americans is growing dramatically, with over 13 percent of the U.S. population over 65. By 2030, that is expected to grow to 22 percent. And with the increase in the population of older Americans comes a corresponding increase in the problem of elder abuse, neglect and exploitation.

There are several forms of elder abuse, including physical, emotional, sexual, neglect and financial exploitation. Some experts estimate that only one out of 14 domestic elder abuse incidents comes to the attention of authorities. Nationally, it is estimated that between 1 and 2 million elders are abused annually, and that the annual financial loss by victims of elder financial abuse is at least $2.6 billion.

Continue reading "Elder Abuse Is Rising As The Population of Older Americans Grows Dramatically" »

The Area Agency on Aging of Lake and Mendocino Counties (AAA) and the Older Adult System of Care of Mendocino County (OASOC) invite you to celebrate Older Americans, Elder Abuse Prevention and Mental Health during the month of May.

AAA and OASOC are co-sponsoring the annual Public Awareness Conference on elder abuse prevention and healthy aging.

This year's conference is entitled "Healthy Communities: Advocacy, Self-Care, & Longevity." The event will be held at the Ukiah Valley Conference Center on Wednesday, May 19, from 8 a.m. to 3:30 p.m.

The daylong event will feature Irving Hellman PhD, licensed geropsychologist.

Dr. Hellman will present on advocacy for elders and self-care for caregivers. The day will begin with a panel discussion with representatives from the district attorney's offices of Lake County and Mendocino County, discussing elder abuse prevention in our communities.

The day will be rounded out with a presentation by centenarian, Lillian Vogel, PhD, author of "What's My Secret," talking about resiliency and longevity.

Registration is free and includes a continental breakfast and lunch.

Advanced registration is required. Seating is limited, so please, register early. Continuing education units are available. The registration deadline is April 30; participants must provide their license type and number at registration in order to receive continuing education units.

To register, or for more information, contact the Area Agency on Aging at 707-463-7775.

How do you know if your loved one is being neglected and / or abused in a nursing home or a skilled nursing facility? You happen to be in the nursing home when a nurses aide comes in to attend to your loved one, and you notice a big red spot on the side of the leg. When you question it, the nurses aide claims that it is nothing but a simple limited red spot.. You may be in fact actually looking at what could be considered neglect and abusee in a nursing home or any health care facility.

A decubitus ulcer is commonly known as a bed sore. A decubitus ulcer can be a simple red or pink mark on the skin or it can be as bad as a very deep sore that reaches into the bone or internal organ. They are caused by prolonged pressure on a particular part of the body and are seen on patients who are bedridden (Thus the name, bed sore).

Most nursing facilities have a policy to turn bedridden patients once every two hours in order to prevent decubitus ulcers from forming. If your loved one has these decubitus ulcers, then they are not being turned in the bed as often as required and this is a form of neglect in a nursing home. Check the patient's medical records to see if in fact the facility has turned the patient at least every two hours.

These decubitus ulcers can lead to further complications, including death if not treated. Therefore, if you have seen decubitus ulcers on your loved one, you should first consult with the doctors and nurses in the facility immediately. If they fail to respond or give you a reasonable answer to why there are decubitus ulcers on your loved one, then you should consider filing a report or a complaint for nursing home neglect and have your loved one transferred to a Hospital that can treat these wounds.

The decubitus ulcer is often painful. So, your loved one may be in severe pain and unable to express their pain. They may be crying for help, but no one is listening. This is neglect. No one should have to suffer the pain of decubitus ulcers. Simply turning or repositioning your loved one every two hours will prevent these ulcers from forming. They should not be there in the first place, but if you do notice them, you should be informed that your loved one is experiencing some form of neglect in their nursing home.

It is true that decubitus ulcers are considered preventable and the development of decubitus ulcers is evidence of some form of neglect. Many paralyzed or terminal individuals with very poor nutrition can be free of these ulcers. This should be accomplished by good patient care. and watching over the patient carefully.

Continue reading "The Formation of a Decubitus Ulcer (Bedsore) in a Health Care Facility Could Be Considered Neglect" »

Pressure ulcers and nursing staff who fail to prevent or properly treat these common injuries are a serious problem in the nursing home industry. Recent statistics have shown that thirty percent of all nursing homes in the United States commit nursing home abuse, and many of these cases involve pressure ulcers and nursing staff. Nursing professionals have a legal and ethical duty to prevent the deterioration of a patient's physical, emotional, mental, and psychosocial well being. A patient's development of pressure ulcers are often a good indicator that nursing staff is abusive or neglectful of their patients.

Pressure ulcers and nursing staff efforts to avoid these common injuries require prompt and adequate prevention and management of these conditions. Pressure ulcers are common in patients who spend an extended period of time with little or no movement, such as those who are bedridden or in a wheel chair. Pressure ulcers, also known as bed sores and decubitis ulcers, develop when the skin's blood supply is cut off for a period longer than two hours or so. This causes the affected skin to atrophy (die) and may also lead to infection. If left untreated, pressure ulcers can grow bigger and invade deeper tissue systems, eating away at muscles, bones, tendons, and other tissues.

In terms of pressure ulcers and nursing staff responsibility, there are a variety of things that nursing professionals can do in order to prevent pressure ulcers. Proper skin care and hygiene is necessary to ensure that skin is kept clean, dry, moisturized and away from harmful substances. Nursing staff must periodically check a patient who is immobile for any signs of pressure ulcers. They must also be careful not to drag or pull a patient from the bed or wheelchair, as this too can aggravate or lead to pressure ulcers.

Frequent repositioning and turning of a patient is also important to prevent pressure sores. There are also bedding materials and special pressure releasing equipment that can be used to reduce the risk of developing pressure sores. Physical therapy programs should be implemented for patients at risk for developing pressure sores and nursing staff have a responsibility to ensure that this therapy is carried out. Proper nutrition is also crucial to avoid pressure ulcers and nursing staff have a duty to serve foods that are high in protein, vitamins and minerals. Patients are more prone to pressure ulcers when they are under weight and suffer malnutrition.

In addition to preventing pressure ulcers, nursing staff also have a duty to treat patients who suffer this life threatening skin condition. The affected area must be clean, dry, and kept away from exposure to infectious bacteria. Infection is a serious risk for pressure ulcers and nursing staff should take every precaution to prevent and treat infections. Nursing staff can administer medications that can help manage and treat pressure ulcers. Nursing professionals have a duty to ensure that pressure sores are properly treated and that they do not get worse.

Continue reading "Decubitus Ulcers, Pressure Sores, & Bedsores Are a Serious Problem in the Nursing Home Industry" »

Infection from bed sores is a serious complication that can lead to serious injury and even death. There are several types of infection from bed sores that a patient can develop when their pressure sores are not promptly and adequately treated. Each year in the United States about one million people develop bed sores (also known as pressure sores and decubitis). Bed sores develop when the blood supply to the skin is cut off for two hours or more. Bed sores are a common ailment suffered by people who are bedridden or confined to a wheelchair.

Approximately sixty thousand people die as a result of infection from bed sores. Infection from bed sores occurs when bacteria develops in the affected area. These bacteria can cause significant damage to the skin, blood, bones, muscles, and other tissues in the affected area. Infection from bed sores is more likely in the presence of sweat, feces, urine, or other moisture when these materials come in contact with affected skin.

Infection from bed sores is preventable when proper and prompt care is administered to a patient who has developed bed sores. Proper diet and hygiene are crucial to prevent infection from bed sores. A diet rich in protein, vitamins and minerals can help to prevent bed sores and infection from bed sores. A person who is bedridden or uses a wheel chair should be shifted often to reduce prolonged pressure to certain areas. In order to prevent infection from bed sores, a patient's skin should be kept clean, dry, moisturized, and away from harsh chemicals. Patients who are incontinent or are at an increased risk of infection from bed sores should be monitored closely and checked frequently for any signs of infection from bed sores.

When a person develops a bed sore, the skin in the affected area first becomes discolored and may be tender and itchy. As the tissues begin to atrophy (die), blisters and open wound abrasions develop. These craters can grow to invade and destroy deeper soft tissues, muscles, bones, tendons, and joints. The potential for infection is high when a bed sore becomes exposed to external elements of moisture and bacteria.

Signs of infection from bed sores can include pus drainage from the bed sores; a foul smell from the wound; and tenderness, heat or redness in the skin surrounding a bed sore. If any of these symptoms of infection from bed sores are present a patient must receive adequate and immediate medical attention to avoid serious complications. Infection from bed sores can be treated with topical or oral antibiotics, and proper wound care and dressings.

Infection from bed sores can include gangrene (tissue death), bone infections (osteomyelitis), blood infections (sepsis), infectious arthritis, and scar carcinoma (cancer of scar tissue). Sepsis alone kills fifty percent off all people who develop this infection.

Continue reading "BedSore Infections Could Lead to Serious Injury and Death" »

Between 2006 and 2008, more than 958,000 medical safety events occurred involving Medicare beneficiaries, resulting in nearly $8.9 billion in excess costs. If facilities focused on better performance measures, an estimated 218,572 of these events, accounting for $2.1 billion in excess costs, could potentially be avoided, according to the seventh annual HealthGrades study on patient safety.

"Patient safety events are not only common, but costly," the report stated. Overall, the total number of patient safety events affected 908,401 Medicare beneficiaries and represented 2.29 percent of all hospitalizations.

During the study, HealthGrades evaluated charts from 39.5 million hospitalizations at 5,000 non-federal hospitals across the country for trends in 15 patient safety indicators such as decubitus ulcer, iatrogenic pneumothorax, deep vein thrombosis and others designated by the Agency for Healthcare Research and Quality (AHRQ).

According to the report, of the Medicare beneficiaries who experienced one or more of the 15 patient safety indicators, 99,190 deaths occurred. One in 10 of these patients who exhibited the signs of at least one safety indicator died as a result, the report noted.

Additional data referenced from Zhan et al showed that 97.19 percent of these deaths of Medicare patients were directly correlated to at least one of the safety events.

Four safety indicators which caused the highest rates of medical errors were: failure to rescue, decubitus ulcer, post-operative respiratory failure and post-operative sepsis. The rates--measured by event rates per 1,000 patients--were recorded as 92.71, 36.05, 17.52 and 16.53 percent, respectively.

Moreover, these four safety indicators accounted for 61.96 percent of all of the patient safety events recorded.

While incidence rates for failure to rescue improved by almost 7 percent between 2006 and 2008, rates of incidence for decubitus ulcer, post-operative respiratory failure and post-operative sepsis plummeted by 35.91, 6.2 and 25.96 percent, respectively.

Six indicators--complications of anesthesia, failure to rescue, selected infections due to medical care, post-operative hemorrhage or hematoma, post-operative abdominal wound dehiscence and accidental puncture or laceration--improved between 2006 and 2008.

However, while these indicators showed modest improvement--on average 10.66 percent--these indicators account for only 20.16 percent of all of the overall safety events that occurred to Medicare patients.

On the other hand, rates of eight indicators that accounted for almost 80 percent of the overall patient incidences-- bed sores, iatrogenic pneumothroax, post-operative hip fracture, postoperative physiologic and metabolic derangements, post-operative respiratory failure, post-operative pulmonary embolism or deep vein thrombosis, post-operative sepsis or transfusion--worsened.

According to the study, decubitus ulcer and post-operative respiratory failure, the two most common indicators, accounted for 50.72 percent of the $8.9 billion in excess costs.

"While many suggest that the increased rates of patient safety indicators are attributable to an increase in detection and/or reporting, these causes should not be used as stand-alone explanations," the report said.

The government is striving to create efforts to eliminate "never events (patient safety events that should never happen)" and holding providers accountable for avoidable medical errors," like those mentioned above, according to HealthGrades.

Researchers also assessed 12 of the 15 patient safety indicators at facilities to evaluate performance and help identify the "best-performing hospitals" to establish a best-practice benchmark against which other hospitals could be evaluated.

The set of hospitals included 740 teaching hospitals and 848 non-teaching hospitals. HealthGrades then recognized the top 15 percent (238 hospitals) with the 2010 Patient Safety Excellence Awards. According to the study, the top-rated hospitals represented less than 5 percent of all U.S. hospitals in the study.

"We found that there were wide, highly significant gaps in individual patient safety indicators and overall performance between the hospitals recognized with the HealthGrades 2010 Patient Safety Excellence Award and the bottom-ranked hospitals," the report stated.

Additionally, the study showed that on average, patients hospitalized at these top-performing hospitals had a 42.58 percent lower risk of experiencing one or more patient safety events compared to the bottom 15 percent of all hospitals.

The study estimated that if all of the hospitals evaluated for patient safety were to perform on the same level as those hospitals recognized by HealthGrades as a top-performer, 218,572 patient safety events would be eliminated and 22,590 deaths in Medicare beneficiaries would be avoided.

In addition, they estimated that nearly $2.1 billion would have been saved between 2006 and 2008.

HealthGrades said that portions of the healthcare reform bill look to adjust provider payments for "unnecessary readmissions and for high-cost common conditions acquired while in the hospital." According to the study this means that facilities would no longer be paid for common safety indicators such as decubius ulcers or post-operative sepsis.

"Congress remains vigilant," the report stated, in finding improved ways to reward performance, while attempting to punish facilities that exhibit a lack of patient and quality care.

"Avoiding mistakes by chance is no longer acceptable," HealthGrades stated. "When patients enter the healthcare system, they entrust their health and their lives to their caregivers. The healthcare system must continue to put systematic safe practices in place to ensure that the system created to save them doesn't unintentionally harm them," the study authors concluded.

Continue reading "Medicare Saddled with over $8.9 Billion in Excess Unnecessary Costs Between 2006 and 2008" »

Elderly patients living in long-term care facilities are among California's most vulnerable citizens. Many of them have no family or friends to visit or advocate for them. For over 30 years, the Long Term Care Ombudsman program has trained nearly a thousand state-certified volunteers who make regular visits to facilities and respond to the concerns of residents and patients in California's 1,300 nursing homes and over 8,000 assisted living facilities. Because of the Ombudsman program, countless incidents of neglect and elder abuse have been exposed and fragile elders protected.

In 2008, Governor Schwarzenegger vetoed $3.8 million in funding for the Ombudsman program, representing half of the program's budget. These cutbacks greatly compromised the ability of the program to investigate complaints and to monitor the care elders are receiving.

In 2009, the state legislature passed AB 392 restoring part of the cuts on a one-time basis by appropriating $1.6 million from an account holding nursing home fines. Unless the funding is continued, the Ombudsman Program will not be able to continue its work. AB 2555 would sustain ombudsman services by appropriating $1.6 million for fiscal 2010-2011, allowing the service to continue to protect elderly nursing home and assisted living residents.

California Advocates for Nursing Home Reform, AARP, the Alzheimer's Association, the California Alliance for Retired Americans, the California Association of Area Agencies on Aging, Catholic Charities of California, the Older Women's League, HICAP Services of Northern California and the California Senior Legislature support the passage of AB 2555.

You can learn more about this issue by visiting the California Advocates for Nursing Home Reform at their website: www.canhr.org and if you support continued funding for the program, contact Assemblyman Wesley Chesbro at assemblymember.chesbro@assembly.ca.gov, or call his Eureka office at 707-445-7014. You can contact Governor Schwarzenegger at governor@governor.ca.gov, or phone him at 916-445-2841.

The terms decubitus ulcer and pressure sore often are used interchangeably in the medical community. Decubitus, from the Latin decumbere, means "to lie down." Decubitus ulcer, therefore, does not adequately describe ulceration that occurs in other positions, such as prolonged sitting (eg, the commonly encountered ischial tuberosity ulcer). Because the common denominator of all such ulcerations is pressure, pressure sore is the better term to describe this condition.

A study by Howard and Taylor found the incidence of pressure sores in nursing home residents in the southeastern United States to be higher in black patients than in white ones. The authors examined data from 113,869 nursing home residents, none of whom had pressure sores at nursing home admission. They determined that 4.7% of black residents developed postadmission ulcerations, compared with 3.4% of white residents. In addition, the racial differences in pressure sore incidence displayed a sex predilection based on patient characteristics. The variation in incidence between black and white males occurred in residents who were dependent in mobility, while in females, such variation occurred in black and white residents who were bedfast and living in nursing homes with fewer than 200 beds.

History of the Procedure:
Pressure sores have probably existed since the dawn of our infirm species. They have been noted in unearthed Egyptian mummies and addressed in scientific writings since the early 1800s. Presently, treatment of pressure sores in the United States is estimated to cost in excess of $1 billion annually.

Pressure is exerted on the skin, soft tissue, muscle, and bone by the weight of an individual against a surface beneath. These pressures are often in excess of capillary filling pressure, approximately 32 mm Hg. In patients with normal sensitivity, mobility, and mental faculty, pressure sores do not occur. Feedback, conscious and unconscious, from the areas of compression leads individuals to change body position. These changes shift the pressure prior to any irreversible tissue damage.

Individuals who are unable to avoid long periods of uninterrupted pressure over bony prominences--a group of patients that typically includes elderly individuals, persons who are neurologically impaired, and patients who are acutely hospitalized--are at increased risk for the development of necrosis and ulceration. These individuals cannot protect themselves from the pressure exerted on their body unless they consciously change position or have assistance in doing so. Even the most conscientious patient with an extensive support group and unlimited financial resources may develop ulceration resulting from a brief lapse in avoidance of the ill effects of pressure.2,3

Frequency
Two thirds of pressure sores occur in patients older than 70 years. The prevalence rate in nursing homes is estimated to be 17-28%.

Among patients who are neurologically impaired, pressure sores occur with an annual incidence of 5-8%, with lifetime risk estimated to be 25-85%. Moreover, pressure sores are listed as the direct cause of death in 7-8% of all paraplegics.

Patients hospitalized with acute illness have a pressure sore incidence rate of 3-11%. In a study of 658 patients aged 65 years or older who underwent surgery for hip fracture, found that 36.1% developed an acquired pressure sore within 32 days after hospital admission. Although the 32-day period included time spent by patients in rehabilitation facilities and nursing homes, the highest incidence rate for pressure sores occurred during the patients' acute hospital stays.

Disturbingly, even with current medical and surgical therapies, patients who achieve a healed wound have recurrence rates of as high as 90%.

Etiology
Many factors contribute to the development of pressure sores, but pressure leading to ischemia is the final common pathway. Tissues are capable of withstanding enormous pressures when brief in duration, but prolonged exposure to pressures slightly above capillary filling pressure initiates a downward spiral towards ulceration.6,7
Impaired mobility is an important contributing factor. Patients who are neurologically impaired, heavily sedated, restrained, or demented are incapable of assuming the responsibility of altering their position to relieve pressure. Moreover, this paralysis leads to muscle and soft-tissue atrophy, decreasing the bulk over which these bony prominences are supported.

Contractures and spasticity often contribute by repeatedly exposing tissues to pressure through flexion of a joint. Contractures rigidly hold a joint in flexion, while spasticity subjects tissues to considerable repeated friction and shear forces.

Sensory loss also contributes to ulceration, by removing one of the most important warning signals, pain.

Paralysis and insensibility also lead to atrophy of the skin with thinning of this protective barrier. The skin becomes more susceptible to minor traumatic forces, such as friction and shear forces, exerted during the moving of a patient. Trauma causing deepithelialization leads to transdermal water loss, creating maceration and adherence of the skin to clothing and bedding, which raises the coefficient of friction for further insult.

Malnutrition, hypoproteinemia, and anemia reflect the overall status of the patient and can contribute to vulnerability of tissue and delays in wound healing. Poor nutritional status certainly contributes to the chronicity often observed with these lesions. Anemia indicates poor oxygen-carrying capacity of the blood. Vascular disease also may impair blood flow to the region of ulceration.

Bacterial contamination from improper skin care or urinary or fecal incontinence, while not truly an etiological factor, is an important factor to consider in the treatment of pressure sores and can delay wound healing.

Pathophysiology
The inciting event for a pressure sore is compression of the tissues by an external force, such as a mattress, wheelchair pad, or bed rail. Other traumatic forces that may be present include shear forces and friction. These forces cause microcirculatory occlusion as pressures rise above capillary filling pressure, resulting in ischemia. Ischemia leads to inflammation and tissue anoxia. Tissue anoxia leads to cell death, necrosis, and ulceration.

Irreversible changes may occur after as little as 2 hours of uninterrupted pressure.

Presentation
Clinical presentation of pressure sores can be quite deceiving to the inexperienced observer. Soft tissues, muscle, and skin have a differential resistance to the effects of pressure. Generally, muscle is the least resistant and will necrose prior to skin breakdown. Also, pressure is not equally distributed from the bony surface to the overlying skin. Pressure is greatest at the bony prominence, decreasing gradually towards the periphery. Once a small area of skin breakdown has occurred, one may be viewing only the tip of the iceberg, with a large cavity and extensive undermining of the skin edges.

Many classification systems for staging pressure ulcers have been presented in the literature. The most widely accepted system is that of Shea, which has been modified to represent the present National Pressure Ulcer Advisory Panel classification system. This system consists of 4 stages of ulceration but is not intended to imply that all pressure sores follow a standard progression from stage I to stage IV. Nor does it imply that healing pressure sores follow a standard regression from stage IV, to stage I, to healed wound. Rather, it is a system designed to describe the depth of a pressure sore at the specific time of examination, in order to facilitate communication among the various disciplines involved in the study and care of such patients.

Stage I represents intact skin with signs of impending ulceration. Initially this would consist of blanchable erythema from reactive hyperemia that should resolve within 24 hours of the relief of pressure. Warmth and induration also may be present. Continued pressure creates erythema that does not blanch with pressure. This may be the first outward sign of tissue destruction. Finally, the skin may appear white from ischemia.

Stage II represents a partial-thickness loss of skin involving epidermis and possibly dermis. This lesion may present as an abrasion, blister, or superficial ulceration.

Stage III represents a full-thickness loss of skin with extension into subcutaneous tissue but not through the underlying fascia. This lesion presents as a crater with or without undermining of adjacent tissue.

Stage IV represents full-thickness loss of skin and subcutaneous tissue and extension into muscle, bone, tendon, or joint capsule. Osteomyelitis with bone destruction, dislocations, or pathologic fractures may be present. Sinus tracts and severe undermining commonly are present.

Other important characteristics of the wound should be noted in addition to depth. One should note the presence or absence of foul odors, wound drainage, eschar, necrotic material, and soilage from urinary or fecal incontinence. This provides information regarding the level of bacterial contamination and the need for débridement or diversionary procedures.

The overall state of health, comorbidities, nutritional status, mental status, and smoking history also should be noted. Presence or absence of contractures and spasticity also are important in the formulation of a treatment plan. One should note where the patient normally resides and the extent of his or her support structure. Examining the support surfaces present on the patient's bed or wheelchair also is important.

Relevant Anatomy
The hip and buttock regions account for 67% of all pressure sores, with ischial tuberosity, trochanteric, and sacral locations being most common. The lower extremities account for an additional 25% of all pressure sores, with malleolar, heel, patellar, and pretibial locations being most common.

The remaining 10% or so of pressure sores may occur in any location that experiences long periods of uninterrupted pressure. Nose, chin, forehead, occiput, chest, back, and elbow are among the more common of the infrequent sites for pressure ulceration. No surface of the body can be considered immune to the effects of pressure.

Continue reading "Decubitus Ulcer and Pressure Sore Are Used Interchangeably By the Medical Community" »

Elder abuse hurts. Nationwide, it is estimated that 11 percent of Americans age 60 and beyond suffered some form of abuse in the last year alone. That number is an estimate because the abuse very often goes unnoticed and unrecognized. For good reason, elder abuse is referred to as the "dirty little secret."

Rep. Tammy Baldwin, D-Madison, has a history of being an elder advocate. She recently co-authored the House version of the Elder Justice Act that is included in the recently signed health care reform bill. This, along with an accessory bill, the Patient Safety and Abuse Prevention Act, devote hundreds of millions of federal dollars to address the issue on a national level.

Baldwin explains, "Elder abuse is a very significant problem in our society, but there has not been a comprehensive federal response. This measure should have a significant impact."

It is too soon to predict how this effort to curb elder abuse will play out at the state or county level, but we can anticipate a significant increase in public awareness, as money will be allocated to states for public education and services. Money will be invested to strengthen prosecution and improve investigations and supportive services for those at risk.

Personally and professionally, I would urge that the question, "Do you feel safe in your home?" be mandated to be asked at every patient/health care provider encounter. It could be part of the routine protocol just as blood pressure and pulse for all older patients, men and women. Medicare dollars could be provided for follow-up services.

The Patient Safety and Abuse Prevention Act creates much-needed protection for those in long-term care facilities. For starters, it will establish a national program of criminal background checks for those seeking jobs in those facilities. From professional experience, I know how important this is.

Years ago, the nursing facility where I was employed as night supervisor hired a male orderly for the night shift as a protection against a rash of petty thefts and attempted break-ins that had been occurring. It was thought that a male could provide some security to the otherwise all-female staff and frail, elderly patients.

This male saviour turned out to be a head shorter than most of us and, with his pimply face, appeared to be barely out of his teens. We laughed among ourselves.

We did not laugh later when we learned that after only a short time of working there, this same young man was arrested on child molestation charges. Not only had we brought a felon into our flock, we had placed our vulnerable patients in a dangerous situation. Not a laughing matter.

The federal funds that are being allocated to tackle elder abuse are overdue and profoundly welcomed by elder advocates, no matter their political biases.

Continue reading "Elder Abuse Hurts" »

Nursing homes for elderly or infirm loved ones are an unfortunate, but sometimes necessary, reality. Many family's come to discover that as their loved ones age, they require care that their family simply cannot provide. Our parents and grandparents may all come to a stage in life where they need constant, qualified medical supervision and treatment. When this happens, nursing homes are one of the few options available to families to get their loved ones the care required.

With this in mind, it is important that the friends and family of vulnerable individuals in nursing homes understand the danger of pressure ulcers. Pressure ulcers are more commonly known as bed sores. Bed sores are patches of dead skin which can become large and very painful over time and which, if left untreated, can ultimately become infected and threaten a patient's life.

Pressure sores are caused by a lack of movement. In essence, a pressure sore develops when pressure is placed on a single spot on the body over an extended period of time. The constant pressure cuts off blood flow to the area which suffocates the tissue beneath the skin. Over time, the tissue begins to die and corrode. Eventually the skin pulls away from the area and dead tissue withers exposing the muscle, flesh, and bone beneath.

As you can imagine, pressure sores are extremely painful. They are often called bedsores because they frequently develop on patients who are bedridden due to age or illness. Because these folks cannot turn or reposition themselves, they cannot relieve the pressure on the affected areas and the ulcers develop and ultimately worsen. Pressure sores pose serious health risks in addition to being incredibly painful. For that reason, pressure sore prevention is critical.

Make note of the condition of your mother, father, uncle, or aunt when they go in to the facility, preferably with pictures. If their skin was clear and sore-free when they were admitted, then any later wounds are likely the healthcare provider's fault.

Moisture causes pressure sores to worsen. Moisture can be prevented using topical creams. It is critical that loved ones who may be incontinent are changed regularly. Contact with feces, urine, or any other moisture for extended periods can accelerate pressure sore development. Additionally, contact with feces can quickly lead to infection since pressure sores are open wounds.

Friction aggravates pressure sores. It is important to ensure that your loved ones are not positioned in a way that places additional pressure on their sores or in ways that will cause there to be friction against the affected area.

Patients with pressure sores need to be TURNED AT LEAST EVERY TWO HOURS! It is the responsibility of the care provider to reposition a resident at least this often to prevent pressure sores from getting worse. Make sure that the nursing home has enough staff to safely reposition your loved one.

Your loved one should be provided with special pressure relieving pillows, mattresses, and other devices designed to ease the force pressing against the wound.
A facility needs to inspect your loved one's pressure sores on a daily basis and keep an accurate log of the development of the sores. Ask to see the log if you're concerned. If the pressure sore is getting larger, something is likely wrong.

Continue reading "Bedsores, Pressure Sores & Decubitus Ulcers If Left Untreated Will Become Infected and Cause Death" »

Elder abuse is on the rise in Sacramento, according to the Volunteers of America, but there is help for those in need of assistance.

A safe house operated by the VOA offers victims a safe place to recover.

Emma Starkey, 70, became a victim of elder abuse at the hands of her own family. Things got so bad last year that she walked away from her own home.

"I decided that I was no use to anyone and for my own safety, I walked away," Starkey said.

Before the safe house, victims often ended up homeless.

VOA president and CEO Leo McFarland said elder abuse is a growing problem in Sacramento.

"We are hearing about 50 a week that are being reported," McFarland said. "We saw these people showing up in our shelters and we knew it wasn't right."

Abused and neglected seniors 62 and older can stay at the home up to 30 days at no cost, while a team of advocates helps them get back on their feet.

"We will be working with law enforcement and adult protective services to make sure the issue that brought them to the senior safe house is resolved in some fashion," McFarland said.

Now, Starkey lives by herself in a subsidized studio apartment and says she wouldn't have it any other way.

"I have a right to live and be myself and be on my own, I can take of myself," Starkey said.

The safe house costs about $250,000 to $350,000 annually to operate.

Continue reading "Elder Abuse Is On the Rise in Sacramento, California" »

Ove Nielsen appeals from a protective order issued against him under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code, § 15600 et seq.) (Elder Abuse Act). (All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.) In a case of first impression, we hold: (1) protective orders issued under the Elder Abuse Act are reviewed for abuse of discretion, and the factual findings underpinning such protective orders are reviewed for substantial evidence; (2) protective orders under the Elder Abuse Act require proof by a preponderance of the evidence of a past act or acts of elder abuse; (3) in this case, there was substantial evidence of Nielsen's past acts toward Rubalee Bookout, which constituted abusive, threatening, and harassing behavior resulting in mental suffering; and (4) the trial court did not abuse its discretion in issuing the protective order. Nielsen's argument that Bookout's request for a protective order was an abuse of process was never raised in the trial court, and is not properly before us on appeal. We affirm the protective order.

STATEMENT OF FACTS AND PROCEDURAL HISTORY
Seventy-eight-year-old Bookout met 70-year-old Nielsen in December 2005. At the time, Nielsen was living on a boat in Dana Point and storing his personal property in someone else's garage. He told Bookout he was looking for a room to rent, and Bookout agreed to rent a room to him in her mobile home in San Juan Capistrano for $300 a month starting in January 2006. After two months, Bookout stopped charging him rent in exchange for performing work and repairs on the mobile home and surrounding property. In April, Bookout and Nielsen moved into a residence together in Laguna Woods. They took title to the residence in joint tenancy, although Bookout paid the full purchase price of $155,000. Bookout testified Nielsen's name was listed on the title only because his monthly income was used to meet Laguna Woods's income requirements.

Bookout filed a civil action against Nielsen on July 20, 2005, seeking to quiet title to the Laguna Woods residence and for fraud, financial elder abuse, breach of an oral agreement, declaratory relief, and constructive trust.

On July 26, 2006, Bookout filed a petition for a protective order under section 15657.03 of the Elder Abuse Act, seeking to have Nielsen excluded from the Laguna Woods residence. In the petition, Bookout declared: "The person to be restrained is a cohabitant/acquaintance of [Bookout] who is currently on title to a stock cooperative in Leisure World as a joint tenant, due to his deceit, undue influence and fraud upon [Bookout]. [Nielsen] paid no part of the purchase price and has paid no rent. After learning of his true intentions, [Bookout] has asked him to leave and return title of the co-op to her, but he "has and continues to refuse. In addition to the financial abuse in having his name put on title, [Nielsen] continues to provoke, intimidate and cause emotional and mental pain and suffering on [Bookout]. (1) [Nielsen] has and continues to threaten [Bookout] that she should `give up' the fight over the property as she is weak and will suffer a stroke and would die from his provocations; (2) [Nielsen] has also engaged in various and numerous random acts of provocation, including intentionally locking [Bookout] out of her Property; (3) calling the police alleging that [Bookout] threatened him with a barbecue fork; (4) placing large packing boxes in the living quarters for no reason other than to provoke [Bookout]; (5) placing his personal belongings in places reserved by [Bookout] and to [Bookout]'s exclusion; (6) placing light bulbs behind sofa pillows; (7) putting screws into and rigging kitchen cabinets such that a special tool is required to open the cabinets, depriving [Bookout] access; and (8) continually trying to tape record anything said by [Bookout] without her consent or permission.... [Nielsen] has focused bright lights on [Bookout]'s bedroom door, and any time she comes out is taking pictures of her. [Nielsen]'s continued [harass]ment, provocation, intimidation and infliction of mental emotional suffering is harmful to [Bookout]'s health and well being and has precluded her from her own residence purchased with her own money."

A temporary restraining order was granted requiring Nielsen to move out of the Laguna Woods residence and preventing Nielsen from directly or indirectly contacting Bookout until the hearing on the section 15657.03 protective order. In his response to Bookout's petition, Nielsen argued Bookout had no right to relief under the Elder Abuse Act, and had not met her burden of proof under the Domestic Violence Prevention Act (Fam.Code, § 6200 et seq. (DVPA). In a declaration submitted with his response, Nielsen denied intentionally locking Bookout out of the residence. Nielsen declared, "I have never assaulted or threatened to assault [Bookout], and I have never committed any physical or emotional harm against her." Nielsen's declaration did not refute any of the other allegations in Bookout's petition.

The trial court conducted a hearing at which both parties testified.We summarize their testimony as follows.

Even before Bookout and Nielsen moved to Laguna Woods, there had been problems between them. Bookout testified she asked Nielsen to leave her mobile home after he began "shaking his fists" in her face and telling her to find a new house. She later asked him to move back in.

The problems continued after Bookout and Nielsen moved to Laguna Woods. Nielsen moved Bookout's personal property into a storage facility and demanded $25,000 to tell her where the storage unit was located. Nielsen admittedly screwed a number of kitchen cabinets closed, although he claimed it was to prevent Bookout from emptying his things out of them. Nielsen also admitted carrying around a tape recorder and trying to record Bookout; she claimed he tried to provoke her into saying something incriminating. Nielsen placed lightbulbs under a cushion on the couch, took Bookout's things out of her room and placed them in the living room, and locked Bookout out of the house when she took her dog for a walk. Bookout testified Nielsen asked her, "why don't you quit? ... I'm going to provoke you until you die. You're dead." Although Bookout called the police several times saying Nielsen threatened her or caused her emotional distress or physical harm, Bookout said the police told her they could not assist her because Nielsen was listed as a joint owner of the property.

After Bookout filed the civil action, Nielsen held a bright light in his hand, and took pictures of Bookout as she came out of her bedroom. Nielsen claimed he was taking pictures of the mess Bookout had made of the residence, not of her.

At the conclusion of the hearing, the trial court stated: "If I don't have an elder abuse case, I'm going to have one within a month. They are going to be in and are going to get in a physical fight. They hate one another. They can't stand one another's guts anymore.If we have them living in the same house, locking up cabinets, keeping things from one another. Locking one another out of the unit when the one's out taking the dog for a walk. That kind of thing. We can't have elderly people going through that kind of stress in their lives.... So certainly I have two elderly people, both of them at risk living in this environment. This is a bloody war. How would you like to be 80 years old living like that? ... That is elder abuse."

The trial court issued a protective order on August 18, 2006, prohibiting Nielsen from: (1) residing in or returning to the Laguna Woods residence; (2) coming within 100 yards of Bookout or the Laguna Woods residence; (3) abusing, intimidating, molesting, attacking, striking, stalking, sexually assaulting, battering, harassing, destroying the personal property of, or disturbing the peace of Bookout; and (4) telephoning or directly or indirectly contacting Bookout. In its minute order, the court found, "acts of elder abuse have occurred between the parties and that [Nielsen] is the perpetrator, [Bookout] is the victim and that the violence did not occur in self-defense." Nielsen timely appealed from the protective order.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ISSUING THE PROTECTIVE ORDER.
I.
STANDARD OF REVIEW
The Elder Abuse Act does not specify the standard of review to apply when reviewing protective orders granted under section 15657.03. That statute, includes the following language: "An order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult." (§ 15657.03, subd. (c), italics added.) The "to the satisfaction of the court" language is identical to language in the DVPA.[ 2 ] In Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079, 132 Cal.Rptr.2d 538, the appellate court concluded issuance or failure to issue a protective order under the DVPA is reviewed for abuse of discretion. A protective order under the DVPA is also reviewed to determine whether the trial court's findings are supported by substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823, 60 Cal.Rptr.3d 175.) Similarly, injunctions issued under Code of Civil Procedure sections 527.6 and 527.8, which prohibit civil harassment, are reviewed to determine whether the necessary factual findings are supported by substantial evidence. (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444, 4 Cal.Rptr.3d 54; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762, 283 Cal.Rptr. 533.)

In our interpretation of the Elder Abuse Act, and in consideration of analogous statutory language and cases interpreting that language, we hold the issuance of a protective order under the Elder Abuse Act is reviewed for abuse of direction, and the factual findings necessary to support such a protective order are reviewed under the substantial evidence test.

We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court's findings. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31, 99 Cal. Rptr.2d 252, 5 P.3d 815.) Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal. (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 1000, 88 Cal.Rptr.2d 540.)

In this case, the trial court stated on the record that it was making its findings by clear and convincing evidence. Section 15657.03 does not require findings to be made by clear and convincing evidence; therefore, a preponderance of the evidence is sufficient. (Evid.Code,
§ 115.) The Los Angeles County Public Defender has requested that we reconsider our opinion in this regard, and conclude instead that the clear and convincing standard applies. We reject this request for three reasons in addition to our reliance on Evidence Code section 115.

First, although section 15657.03 does not specify a burden of proof, section 15657 permits the recovery of attorney fees and costs and eliminates the limitations on damages imposed by Code of Civil Procedure section 377.34 if physical abuse or neglect of an elder is "proven by clear and convincing evidence." When the Legislature specifies the clear and convincing evidence standard of proof applies in one statute, and omits such a standard from another statute in the same chapter and article, we presume the Legislature did not intend the clear and convincing evidence standard to apply in the latter statute. (In re Manolito L. (2001) 90 Cal.App.4th 753, 761-762, 109 Cal.Rptr.2d 282.)

Second, the Los Angeles County Public Defender urges us to apply a heightened burden of proof to claims under section 15657.03 to make proof required under that statute consistent with the proof required under other statutes prohibiting harassment. The Public Defender does not identify the statutes to which he refers. Assuming the Public Defender is referring to Code of Civil Procedure sections 527.6 and 527.8, those statutes expressly specify the heightened clear and convincing standard of proof applies, which distinguishes them from section 15657.03. (See Code Civ. Proc, §§ 527.6, subd. (d), 527.8, subd. (f).)

Third, the Public Defender relies on People v. Englebrecht (2001) 88 Cal. App.4th 1236, 1255-1256, 106 Cal.Rptr.2d 738, in which the appellate court held the judiciary may determine a heightened standard of proof applies when it considers both "constitutional due process and more general public policy considerations." (Citations and footnote omitted.) As that court noted, "`The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. [Citation.] The burden of proof thus serves to allocate the risk of error between the parties, and varies in proportion to the gravity of the consequences of an erroneous resolution. [Citations.] Preponderance of the evidence results in the roughly equal sharing of the risk of error. [Citation.] To impose any higher burden of proof demonstrates a preference for one side's interests. [Citation.] Generally, facts are subject to a higher burden of proof only where particularly important individual interests or rights are at stake; even severe civil sanctions not implicating such interests or rights do not require a higher burden of proof. [Citations.]'" (Id. at pp. 1253-1254, 106 Cal.Rptr.2d 738.)

Here, the public policy interest as articulated by the Legislature favors application of the preponderance of the evidence standard, not the clear and convincing standard. In enacting the Elder Abuse Act, the Legislature fully identified the goals and purposes of the Act as follows: "(a) The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons. (b) The Legislature further recognizes that a significant number of these persons are elderly. The Legislature desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment, (c) The Legislature further recognizes that a significant number of these persons have developmental disabilities and that mental and verbal limitations often leave them vulnerable to abuse and incapable of asking for help and protection. (d) The Legislature recognizes that most elders and dependent adults who are at the greatest risk of abuse, neglect, or abandonment by their families or caretakers suffer physical impairments and other poor health that place them in a dependent and vulnerable position. (e) The Legislature further recognizes that factors which contribute to abuse, neglect, or abandonment of elders and dependent adults are economic instability of the family, resentment of caretaker responsibilities, stress on the caretaker, and abuse by the caretaker of drugs or alcohol, (f) The Legislature declares that this state shall foster and promote community services for the economic, social, and personal well-being of its citizens in order to protect those persons described in this section, (g) The Legislature further declares that uniform state guidelines, which specify when county adult protective service agencies are to investigate allegations of abuse of elders and dependent adults and the appropriate role of local law enforcement is necessary in order to ensure that a minimum level of protection is provided to elders and dependent adults in each county. (h) The Legislature further finds and declares that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. (i) Therefore, it is the intent of the Legislature in enacting this chapter to provide that adult protective services agencies, local long-term care ombudsman programs, and local law enforcement agencies shall receive referrals or complaints from public- or private agencies, from any mandated reporter submitting reports pursuant to Section 15630, or from any other source having reasonable cause to know that the welfare of an elder or dependent adult is endangered, and shall take any actions considered necessary to protect the elder or dependent adult and correct the situation and ensure the individual's safety. (j) It is the further intent of the Legislature in adding Article 8.5 (commencing with Section 15657) to this chapter to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults." (§ 15600.)

Given these reasons set forth by the Legislature, it would be inappropriate for this court to provide less protection for the elderly and dependent adults and to make it harder to obtain relief under section 15657.03 than otherwise provided by the statutory scheme.

In considering whether the trial court's findings are supported by substantial evidence, we review the record as if the court had made its findings based on a preponderance of the evidence standard.

In reviewing the issuance of a restraining order, we will only find an abuse of discretion when the trial court exceeds the bounds of reason or disregards the uncontradicted evidence. The party challenging the issuance of the order bears the burden of showing of an abuse of discretion by the trial court. (Biosense Webster, Inc. v. Superior Court (2006) 135 Cal.App.4th 827, 834, 37 Cal.Rptr.3d 759; see IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121.)

II.
SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT'S FACTUAL FINDINGS.
Subdivision (c) of section 15657.03 permits a trial court to issue a protective order "for the purpose of preventing a recurrence of abuse, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder."

An "elder" is defined as a California resident, age 65 years or older. (§ 15610.27.) "Abuse of an elder" is defined as "[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." (§ 15610.07, subd. (a).) "Financial abuse" occurs when someone "[t]akes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both." (§ 15610.30, subd. (a)(1).) "Mental suffering" is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, [or] harassment...." (§ 15610.53.)

At the time these incidents occurred, Bookout was a 78-year-old California resident, and therefore qualifies for protection as an elder under the Elder Abuse Act. (§ 15610.27.) Bookout's verified petition and her testimony at the hearing contain substantial evidence of Nielsen's past acts toward her, which can fairly be characterized as abusive, threatening and harassing behavior resulting in mental suffering and emotional harm. (§ 15610.07, subd. (a).) Evidence showed those acts included Nielsen shaking his fists at Bookout; threatening to provoke her until she suffered a stroke and died; attempting to tape-record anything she said without her consent; locking her out of the residence; interfering with her access to her personal property, whether by secreting it in a locked storage facility, screwing cabinets closed, or removing her property; and forcing her to remain in her bedroom with the use of bright lights and cameras.

Nielsen's sworn written statement and testimony at the hearing contradicted some of Bookout's testimony, blamed her for the problems they faced, or provided innocent explanations for his actions. It was for the trial court to weigh the evidence and consider the demeanor and credibility of the witnesses. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 182, 132 Cal.Rptr.2d 490, 65 P.3d 1255.)

III.
NIELSEN'S CLAIM FOR ABUSE OF PROCESS IS NOT BEFORE US ON APPEAL.
Nielsen argues the restraining order is frivolous given that he and Bookout are engaged in a legal battle to determine their respective rights to the property and that Bookout just wanted him out of the house. It is not necessary to address the merits of this argument because Nielsen did not raise his abuse of process claim before the trial court; he therefore waived his right to raise it on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117, 95 Cal.Rptr.2d 113; In re Marriage of Hinman (1997) 55 Cal.

Continue reading "Protective Orders Brought Under the California Elder Abuse Act Require Proof By A Preponderance of The Evidence" »

Explanation of Decubitus Ulcers

A decubitus ulcer is a pressure sore or what is commonly called a "bed sore". It can range from a very mild pink coloration of the skin, which disappears in a few hours after pressure is relieved on the area, to a very deep wound extending to and sometimes through a bone into internal organs. These ulcers, as well as other wound types, are classified in stages according to the severity of the wound.

All decubitus ulcers have a course of injury similar to a burn wound. This can be a mild redness of the skin and/or blistering, such as a first-degree burn, to a deep open wound with blackened tissue, as in a third degree burn. This blackened tissue is called eschar.

Mechanism of Formation

The usual mechanism of forming a decubitus ulcer is from pressure. However it can also occur from friction by rubbing against something such as a bed sheet, cast, brace, etc., or from prolonged exposure to cold. Any area of tissue that lies just over a bone is much more likely to develop a decubitus ulcer. These areas include the spine, coccyx or tailbone, hips, heels, and elbows, to name a few. The weight of the person's body presses on the bone, the bone presses on the tissue and skin that cover it, and the tissue is trapped between the bone structure and bed or wheelchair surface. The tissue begins to decay from lack of blood circulation. This is the basic formation of decubitus ulcer development.

Nursing Care, Prevention and Treatment of Decubitus Ulcers

The common areas of decubitus ulcer formation and prevention is a basic nursing principle covered in nursing school curriculum (LVN/LPN or RN) and most nursing assistant programs as well. Prevention consists of changing position every 2 hours or more frequently if needed. This 2-hour time frame is a generally accepted maximum interval that the tissue can tolerate pressure without damage. Prevention also consists of protection and padding to prevent tissue abrasion, and maintaining hydration, nutrition and hygiene.

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The treatment for a decubitus ulcer involves keeping the area clean and removing necrotic (dead) tissue, which can form a breeding ground for infection. There are many procedures and products available for this purpose. The use of antibiotics, when appropriate is also part of the treatment. Some deep wounds even require surgical removal or debridement of necrotic tissue. In some situations amputation may be necessary.
The second portion of the treatment involves removing all pressure from the involved area(s) to prevent further damage of tissue and to promote healing. Frequent turning is mandatory to alleviate pressure on the wound and to promote healing. Along with cleaning, removal of dead tissue, and alleviating pressure, the individual must have increased nutrition to allow for proper healing of the wounds. Without all of these elements being in place, the wounds will not heal and, in fact, will quickly worsen.

Prevention

The basic treatment of decubitus ulcers is prevention. Prevention cannot be stressed too strongly. To this end, there are any number of devices designed to protect and prevent the formation of decubitus ulcers. The decision of which device to use is based on the location and severity of the wound. These devices may be a Medicare/Medicaid/Insurance-covered item when medically necessary. Most insurance's will cover any needed device, material, or equipment necessary to prevent and treat decubitus ulcers. Prevention is the most humane and cost effective approach to care.

Standards of Care

It remains true that decubitus ulcers are generally considered preventable and the development of decubitus ulcers is evidence of some form of neglect [nutrition, hydration, positioning, infection control, etc]. Many paralyzed or terminal individuals with very poor nutrition can remain free of decubitus ulcers. This is accomplished by good patient care often being provided by family members and non-licensed hired caregivers. Professional medical personnel generally provide only a minimum amount of medical assistance. Prevention is achieved by diligent care.

Decubitus Ulcer Formation and Treatment in Long-Term Care Facilities

In long-term care facilities the rate of decubitus ulcer development is higher for a variety of reasons. Due to staffing shortages, medical funding cuts and an array of issues, most long-term care facilities are chronically understaffed. This results in patients not being turned, cleaned and fed as often as the ideal standard of nursing would dictate.

It is known that almost all decubitus ulcers are preventable. However the reality of long-term care concludes that if a patient does not have massive weight loss, chronic infections, or wounds that do not heal in two weeks then that individual is receiving a reasonable standard of care. It is not uncommon for small wounds to develop, be treated and heal quickly. This is considered adequate care.

Massive weight loss, massive deep wounds over Stage II and chronic infections continue to be an unacceptable standard of care. Massive wounds are generally a strong indication of negligence in more than one area [hygiene, nutrition, infection control, positioning, etc.].

Another emerging factor in long-term care is patient directed care. Alert and generally oriented individuals determine their own care. These persons, though elderly and frail, are not declared incompetent. Patient's rights, as it is currently practiced, allows for patient refusal of medications, food, fluids and treatments such as turning. This often results in a lesser quality of care being provided due to patient noncompliance. When this occurs, the ideal situation is to involve the patient, family, staff and physician in a plan of care that will be acceptable and beneficial. Patient refusal of nutrition and positioning may lead to the development of decubitus ulcers as well.

In summary: In almost all situations, the development of massive decubitus ulcers is evidence of some form of neglect. Generally the neglect is in more than one area, i.e., hygiene and nutrition. It would be a very rare exception for this to not be true.

Decubitus ulcers need to be viewed as a preventable injury, not an excusable one.

Stages of Wounds

Wounds are often categorized according to severity by the use of stages. The staging system applies to burn wounds, Decubitus ulcers (see Appendix Two) and several other types of wounds.

Stage I
This stage is characterized by a surface reddening of the skin. The skin is unbroken and the wound is superficial. This would be a light sunburn or a first degree burn as well as a beginning Decubitus ulcer. The burn heals spontaneously or the Decubitus ulcer quickly fades when pressure is relieved on the area.

The key factors to consider in a Stage I wound is what was the cause of the wound and how to alleviate pressure on the area to prevent it from worsening. Improved nutritional status of the individual should also be considered early to prevent wound worsening. The presence of a Stage I wound is an indication or early warning of a problem and a signal to take preventive action.

Treatment consists of turning or alleviating pressure in some form or avoiding more exposure to the cause of the injury as well as covering, protecting, and cushioning the area. Soft protective pads and cushions are often used for this purpose. An increase in vitamin C, proteins, and fluids is recommended. Increased nutrition is part of prevention.

Stage II
This stage is characterized by a blister either broken or unbroken. A partial layer of the skin is now injured. Involvement is no longer superficial.

The goal of care is to cover, protect, and clean the area. Coverings designed to insulate and absorb as well as protect are used. There is a wide variety of items for this purpose.

Skin lotions or emollients are used to hydrate surrounding tissues and prevent the wound form worsening. Additional padding and protective substances to decrease the pressure on the area are important. Close attention to prevention, protection, nutrition, and hydration is important also. With quick attention, a stage II wound can heal very rapidly.

A wound can appear to be a Stage I wound upon initial evaluation, and actually be reevaluated as a Stage II wound during the course of care. Quick attention to a Stage I Decubitus ulcer or pressure wound will prevent the development of a Stage III Decubitus ulcer or pressure wound. Generally Decubitus ulcers or pressure wounds developing beyond Stage II is from lack of aggressive intervention when first noted as a Stage I. [see notation].

Stage III
The wound extends through all of the layers of the skin. It is a primary site for a serious infection to occur.

The goals and treatments of alleviating pressure and covering and protecting the wound still apply as well as an increased emphasis on nutrition and hydration.

Medical care is necessary to promote healing and to treat and prevent infection. This type of wound will progress very rapidly if left unattended. Infection is of grave concern.

Stage IV
A Stage IV wound extends through the skin and involves underlying muscle, tendons and bone. The diameter of the wound is not as important as the depth. This is very serious and can produce a life threatening infection, especially if not aggressively treated. All of the goals of protecting, cleaning and alleviation of pressure on the area still apply. Nutrition and hydration is now critical. Without adequate nutrition, this wound will not heal.

Anyone with a Stage IV wound requires medical care by someone skilled in wound care. Surgical removal of the necrotic or decayed tissue is often used on wounds of larger diameter. A skilled wound care physician, physical therapist or nurse can sometimes successfully treat a smaller diameter wound without the necessity of surgery. Surgery is the usual course of treatment. Amputation may be necessary is some situations.

Stage V
This is an older classification and not now used in all areas. A stage 5 wound is a wound that is extremely deep, having gone through the muscle layers and now involves underlying organs and bone. It is difficult to heal. Surgical removal of the necrotic or decayed tissue is the usual treatment. Amputation may be necessary is some situations.

Notation
It is possible for a wound to "go from a stage I wound to a stage III or IV" without the intermittent stage[s] being observed. All wound stages were present just not obvious, hence the need to treat all wounds as serious with the potential of rapidly worsening.

In this appeal, we are asked to determine whether the attorney fees provision of the Elder Abuse Act (Welf. & Inst. Code, § 15657.5)[ 2 ] authorizes the award of trustee fees as costs. We hold that it does not.

Lawrence I. Schwartz as trustee of the Lawson Family Trust (the Trust), and Lionel B. Sanders as conservator of the estates of Louis and Sylvia Lawson brought an action under the Elder Abuse Act (§ 15600 et seq.)

[ 164 Cal.App.4th 434, 437 ]

against Cheryl Lawson, a beneficiary.[ 3 ] The lawsuit stemmed from the manner in which Cheryl had obtained her elderly parents' signatures on a quitclaim deed that transferred an undivided one-half interest in a residence in Santa Barbara to her. Cheryl appeals from the judgment entered against her and from the subsequent award of costs and fees to the trustee and plaintiffs' attorneys. We reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
The facts are essentially undisputed. Cheryl is one of three children of Louis W. and Sylvia Lawson, now deceased.[ 4 ] Sanders was the courtappointed conservator of the estates of both Louis and Sylvia. Schwartz was the successor trustee of the Trust dated November 10, 1995, and amended and restated in January 2003.[ 5 ]

The Lawsons acquired the Santa Barbara residence (the Santa Barbara property) in 1990. Cheryl on the one hand, and her parents on the other, each held an undivided one-half interest in that property. Title to the senior Lawsons' one-half interest was held by the Trust as of October 2002.

In May 2003, Louis and Sylvia conveyed their interest in the Santa Barbara property to Cheryl by quitclaim deed. Cheryl then filed a quiet title action in Santa Barbara naming as a defendant, the trustee.

While the quiet title action was pending, in June 2004, plaintiffs filed the instant action in Los Angeles County against Cheryl seeking damages for elder abuse and breach of fiduciary duty arising out of the events leading to Louis and Sylvia's transfer of their interest in the Santa Barbara property to Cheryl. The gravamen of the complaint was that Cheryl acquired the property through undue influence and elder abuse in that she pressured, forced, and coerced Sylvia and Louis, during unwelcome telephone calls and visits, to sign the quitclaim deed.

At the close of the bench trial, the court found in favor of plaintiffs and adopted their 37-page statement of decision. The court awarded damages as follows: (1) $583,769.83 to the trustee for Cheryl's financial abuse (comprised of $512,500, which was the senior Lawsons' one-half interest in the

[ 164 Cal.App.4th 434, 438 ]

property, plus $65,000 in rental income from the Santa Barbara property, plus interest); and (2) $100,000 to the conservator for Cheryl's elder abuse (comprised of $50,000 each for Sylvia and Louis). It also ordered Cheryl to pay attorney fees, and trustee and conservator fees as costs, but left the amount to later determination. After the trial court denied Cheryl's motion for new trial, Cheryl filed her notice of appeal.

Plaintiffs then filed their motion for fees and costs. After referring the matter to a referee, the trial court accepted the dollar amounts only from the referee's recommendations and awarded the conservator $11,896.50; the trustee $517,869.93; and the attorneys $1,077,579.08. Additional facts will be delineated below.

DISCUSSION
1.-3.a.[ 6 ]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b. The trial court's award of trustee fees was unauthorized.
Cheryl contends that the attorney fees provision in the Elder Abuse Act, section 15657.5, does not authorize the award of compensation to a trustee and so the $517,869.93 awarded to the trustee here was legal error. The relevant sentence in section 15657.5, subdivision (a) reads: "The term `costs' includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article." (Italics added.) The referee concluded that that sentence was expansive enough to include the services of a trustee as well. We disagree with the referee.

"On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. [Citations.]" (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [118 Cal.Rptr.2d 569].)

(1) In California a prevailing party in a civil proceeding is entitled to the recovery of costs. (Code Civ. Proc., § 1032, subd. (b).) "Code of Civil Procedure `[s]ection 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that "[e]xcept as otherwise

[ 164 Cal.App.4th 434, 439 ]

expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding."` [Citation.]" (Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 724 [56 Cal.Rptr.3d 19].) The "`"items ... allowable as costs under Section 1032"'" are enumerated in Code of Civil Procedure section 1033.5. (Duale, supra, at p. 724.)

(2) Here, the Elder Abuse Act's section 15657.5 is the relevant attorney fees statute that invokes application of Code of Civil Procedure section 1032 costs, and by reference, the cost list in Code of Civil Procedure section 1033.5. (Code Civ. Proc., § 1033.5, subd. (c)(5); see Duale v. Mercedes-Benz USA, LLC, supra, 148 Cal.App.4th at p. 724.) As noted, section 15657.5 reads, in relevant part, "(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs. The term `costs' includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article." (Italics added.)

Section 15657.5 makes no mention of trustees. Instead, it defines the term "costs" to include reasonable fees for the services of a conservator.

In support of the award of fees to the trustee, plaintiffs point to the important purpose of the Elder Abuse Act, namely, to encourage private enforcement of laws to protect a particularly vulnerable sector of the population from abuse and custodial neglect. (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal.Rptr.2d 610, 971 P.2d 986].) They contend that this purpose necessitates an expansive reading of the Elder Abuse Act's cost provision. They argue thus that the phrase "includes, but is not limited to," in section 15657.5 "is broad enough to encompass the fees of the Trustee as well as those of the Conservator." We decline plaintiffs' invitation to expand the scope of statutorily available costs.

First, the clause in section 15657.5, "includes, but is not limited to," does not expand the list of items that could be considered costs to trustee fees. It has long been the law in California that "[c]osts recoverable are only those recoverable by statute or rule of court even though the item may be a reasonable one. [Citations.]" (Muller v. Reagh (1959) 170 Cal.App.2d 151, 153 [338 P.2d 601]; accord, Duale v. Mercedes-Benz USA, LLC, supra, 148 Cal.App.4th at p. 724 ["`"The right to recover costs exists solely by virtue of statute." [Citations.]'"].) Code of Civil Procedure section 1033.5 delineates the items allowable as costs in civil actions where costs are authorized by statute. (Code Civ. Proc., § 1033.5, subd. (c)(5).) That comprehensive list

[ 164 Cal.App.4th 434, 440 ]

does not include trustee fees. Because the services of a trustee are entirely absent from this list of available costs, there was no authority for the award of fees to the trustee as costs.

(3) Second, knowing full well what trustees and conservators are, the Legislature did not include fees for trustees' services when it enacted section 15657.5; it chose only to include fees for conservators' services. That is, when adding to the Code of Civil Procedure section 1033.5 list of available costs, the Legislature chose not to include trustee fees in section 15657.5. "We presume the Legislature meant what it said in the [Welfare and Institutions Code], and that it is aware of the circumstances set forth in the Code of Civil Procedure under which attorneys fees may be recovered. [Citations.] Where the words of a statute are clear, we may not add to or alter the statute to accomplish a purpose which does not appear on its face. [Citation.]" (Department of Forestry & Fire Protection v. LeBrock (2002) 96 Cal.App.4th 1137, 1139 [117 Cal.Rptr.2d 790].) Had the Legislature intended to include as costs in section 15657.5 the reasonable fees for the services of a trustee, it could have said so, given it was aware of the itemized list of costs in Code of Civil Procedure section 1033.5 and the absence therein of a reference to trustees. We decline to expand the list of statutory costs to include those of the trustee where the Legislature has conspicuously failed to do so. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88 [260 Cal.Rptr. 520, 776 P.2d 222].)

Third, to endorse the interpretation suggested by plaintiffs "would substantially expand the range of recoverable costs, particularly under these facts" (Golf West of Kentucky, Inc. v. Life Investors, Inc. (1986) 178 Cal.App.3d 313, 317 [223 Cal.Rptr. 539], superseded by statute as stated in Cooper v. Westbrook Torrey Hills (2000) 81 Cal.App.4th 1294 [97 Cal.Rptr.2d 742]), where plaintiffs' attorneys already had the benefit of a conservator protecting the interests of the persons and estates of Louis and Sylvia, and where the ratio of trustee fees to conservator fees was nearly 50 to 1. "Modification of costs recoverable on appeal is best left to the Legislature with its fact finding capabilities through hearings at which all interested parties may have input." (Golf West of Kentucky, Inc., at p. 317.)[ 7 ]

(4) Where fees of a trustee are not authorized by section 15657.5 and Code of Civil Procedure section 1033.5, the trial court acted improperly in awarding the trustee fees for his services here in connection the claims brought under the Elder Abuse Act.

Continue reading "Attorneys Fees Provisions Under the California Elder Abuse Act Does Not Authorize the Award of Trustee Fees As Costs" »

Illinois lawmakers are considering a measure meant to protect the elderly from being ripped off by people they've entrusted with their power of attorney.

The AARP says this kind of exploitation is a serious problem. Giving someone authority to make legal decisions can be a big help to senior citizens but the group says it can also be "a license to steal."

The AARP is backing the Illinois legislation, which was approved by the House and awaits Senate action.

The bill clarifies the duties and authority that go along with the power of attorney. It also creates legal liability for someone who misuses the power.

Continue reading "Illinois Is Considering New Laws to Curb Power of Attorney Fiduciary Abuse" »

The most important care for a patient with bedsores is the relief of pressure. Once a bedsore is found, pressure should immediately be lifted from the area and the patient turned at least every two hours to avoid aggravating the wound. Nursing homes and hospitals usually set programs to avoid the development of bedsores in bedridden patients such as using a standing frame to reduce pressure and ensuring dry sheets by using catheters or impermeable dressings. For individuals with paralysis, pressure shifting on a regular basis and using a cushion featuring pressure relief components can help prevent pressure wounds.

Pressure-distributive mattresses are used to reduce high values of pressure on prominent or bony areas of the body.Antidecubitus mattresses and cushions can contain multiple air chambers that are alternately pumped. However, methods to evaluate the efficacy of these products have only been developed in recent years.

Continue reading "Proper Care For Bedsore, Pressure Sores and Decubitus Ulcers Is the Relief of Pressure" »

Mandatory reporting of elder abuse is governed by the laws of individual states, rather than through federal legislation. Elder abuse takes many forms, including emotional neglect, physical abuse and financial exploitation. Everyone should be aware of the signs and symptoms of elder abuse and know where to turn in the community for assistance. Adult Protective Services (APS) or local agencies on aging provide information on mandatory reporting of elder abuse.
Federal Law
For purposes of elder abuse, federal law defines "older individuals" as those age 60 and over. Although the federal government does not require reporting of elder abuse, the Social Security Act of 1974 authorized states to create offices of Adult Protective Services. Title VII of the Older Americans Act of 1965, also known as The Vulnerable Elder Rights Protection Program, was enacted in 1992 to establish local Ombudsman offices and other agencies dedicated to protecting the rights of elderly Americans.
State Reporting Requirements
In nearly every state, health care professionals, long-term care facility personnel, and mental health professionals must report elder abuse. Some states, including Delaware, Florida, Indiana, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Rhode Island, Tennessee, Utah, and Wyoming go further and require any person who knows of elder abuse to make a report. Since each states individually defines what constitutes abuse that must be reported, you should consult Adult Protective Services or an attorney to ensure compliance with a particular state's law.
Elder Abuse Definition
Elder abuse can be intentional or unintentional. According to the Substance Abuse and Mental Health Services Agency (SAMHSA), "intentional abuse is a conscious and deliberate attempt to inflict physical, emotional, or financial harm, often due to a need for control." SAMHSA defines unintentional abuse as "an inadvertent action resulting in physical, emotional, or financial harm, usually due to ignorance, inexperience, lack of desire, or inability to provide proper care." The 1998 National Elder Abuse Incidence Study states that elder abuse includes the following: physical abuse, sexual abuse, emotional/psychological abuse, neglect and abandonment, financial exploitation, self-neglect, medication abuse, and violation of rights.
Identifying Elder Abuse
Indications of possible physical abuse include broken bones, burns, bruises or other injuries in various stages of healing, and abrasions on the arms and legs. Symptoms of possible psychological abuse include unexplained weight loss or gain, stress-related illnesses and depression. Indications of possible financial abuse include eviction notices, unexplained bank withdrawals, new close friends, and suspicious signatures on checks or other legal documents.

Continue reading "Mandatory Reporting of Elder Abuse Governed by Individual States" »

Debridement

The removal of necrotic tissue is an absolute must in the treatment of pressure sores. Because dead tissue is an ideal area for bacterial growth, it has the ability to greatly compromise wound healing. There are at least seven ways to excise necrotic tissue.

Autolytic debridement is the use of moist dressings to promote autolysis with the body's own enzymes. It is a slow process, but mostly painless.
Biological debridement, or maggot debridement therapy, is the use of medical maggots to feed on necrotic tissue and therefore clean the wound of excess bacteria. Although this fell out of favour for many years, in January 2004, the FDA approved maggots as a live medical device.

Chemical debridement, or enzymatic debridement, is the use of prescribed enzymes that promote the removal of necrotic tissue.

Mechanical debridement is the use of outside force to remove dead tissue. A quite painful method, this involves the packing of a wound with wet dressings that are allowed to dry and then are removed. This is also unpopular because it has the ability to remove healthy tissue in addition to dead tissue. Lastly, with Stage IV ulcers, there is the chance that overdrying of the dressings can lead to bone fractures and ligament snaps.

Sharp debridement is the removal of necrotic tissue with a scalpel or similar instrument.

Surgical debridement is the most popular method, as it allows a surgeon to quickly remove dead tissue with little pain to the patient.

Ultrasound-assisted wound therapy is the use of ultrasound waves to separate necrotic and healthy tissue.

Continue reading "Debridement and Removal of Necrotic Tissue is an Absolute Must In The Treatment of Bedsores, Pressure Sores and Decubitus Ulcers" »

Elder abuse is an issue that many keep silent about, including its victims. Since this issue is one that has been on the rise, but is hidden from the public, awareness is essential so victims and their families know their rights and where to find help. Raise awareness on this important topic in your community and help prevent elder abuse.
Community Outreach
Outreach in your community regarding the issue of elder abuse can take several different forms. The National Center on Elder Abuse provides outreach materials that can be printed and handed out to businesses, community senior centers, cultural centers, senior living facilities, nursing homes, restaurants, churches and supermarkets to name a few. This website also provides an "Awareness Kit" to help those who want to speak about this issue to local churches and community gatherings, such as the local KIWANIS, Chamber of Commerce, etc.

Outreach can be an effective way to reach out to hidden victims, faith-based groups, caregivers, geriatric professionals and families. By going out into your community, you can help raise awareness about what elder abuse is, the signs of abuse, what should be done about this issue and the resources that are available.
Join a Task Force
Joining a task force or special concerns group can provide strength in numbers since all the members are driven by the same cause. If you are not aware of a task force or group in your area whose aim is to raise awareness about elder abuse, contact the AARP or the National Center on Elder Abuse to see if there's one near you. If not, form one on your own.
Raise Awareness Online
If you have already joined a task force and are heavily involved in community outreach, consider creating a website, blog or an online group surrounding the topic of elder abuse to take your awareness efforts one step further. The website or online group can connect visitors to local and national elder abuse resources, allow access to printable materials, provide tips on how others can help, list signs of abuse and let people know what should be done if abuse is suspected.

If possible, include a forum on your site where questions can be asked and support given in a non-intimidating environment. Invite a professional, such as a doctor or social worker, familiar with the issues surrounding elder abuse to contribute the forum and different areas of the site.

Continue reading "Elder Abuse Awareness is Essential So Victims Can Know Their Rights" »

Bedsores also known as Pressure Sores and Decubitus Ulcers are accepted to be caused by three different tissue forces:

Pressure, or the compression of tissues. In most cases, this compression is caused by the force of bone against a surface, as when a patient remains in a single decubitus position for a lengthy period. After an extended amount of time with decreased tissue perfusion, ischemia occurs and can lead to tissue necrosis if left untreated in an immunocompromised patient.

Shear force, or a force created when the skin of a patient stays in one place as the deep fascia and skeletal muscle slide down with gravity. This can also cause the pinching off of blood vessels which may lead to ischemia and tissue necrosis.

Friction, or a force resisting the shearing of skin. This may cause excess shedding through layers of epidermis.

Aggravating the situation may be other conditions such as excess moisture from incontinence, perspiration or exudate. Over time, this excess moisture may cause the bonds between epithelial cells to weaken thus resulting in the maceration of the epidermis. Temperature is also a very important factor. The cutaneous metabolic demand rises by 13% for every 1°C rise in cutaneous temperature. When supply can't meet demand, necrosis therefore occurs. Other factors in the development of bedsores include age, nutrition, vascular disease, diabetes mellitus, and smoking, amongst others.

There are currently two major theories about the development of pressure ulcers, bedsores and decubitus ulcers.

The first and most accepted is the deep tissue injury theory which claims that the ulcers begin at the deepest level, around the bone, and move outward until they reach the epidermis. The second, less popular theory is the top-to-bottom model which says that skin first begins to deteriorate at the surface and then proceeds inward.

Continue reading "Bedsores, Pressure Sores, and Decubitus Ulcers Are Caused by Different Types of Tissue Forces" »

According to the National Center on Elder Abuse, between 1 million and 2 million Americans 65 or older have been mistreated. Only one in 14 cases of elder abuse in domestic settings is reported, and only one in 25 cases of financial exploitation is reported. Elder abuse victims tend to be female, socially isolated, dependent on a caregiver, physically frail, and experiencing other family stressors. The abuser is most frequently a family member, perhaps a spouse or an adult child. He or she also may be a neighbor, friend or paid caregiver. Abusers tend to be unemployed, suffering from mental illness and/or chemical addiction, middle aged, dependent on the older adult, socially isolated and experiencing their own financial and/or legal problems.

The current economic climate will cause deep and painful funding cuts to key publicly funded services across the board. However, in contrast to other New York City programs, elder abuse programs are slated for elimination -- not just a budget cut. Eliminating even the existing bare bones level of funding for these programs will have a catastrophic impact on elder abuse victims. No other programs assist New York City's older adults with this specific targeted service and with the necessary professional expertise they need.

Elder abuse, if not addressed, may threaten the victim's life. It can induce poverty and so deprive them of needed care. This can lead to an even greater strain on public resources whether the victim remains in the community or is institutionalized.

Eliminating elder abuse services will place a greater burden on other public services, such as the police, hospitals and senior social services. Although adult protective services are available, not all elder abuse clients meet the eligibility criteria -- which include mental and/or physical disability. In fact, perhaps only 20 percent of the our current elder abuse services caseload would be eligible for these services.

Elder abuse programs work, providing vital safety measures, legal representation, support services and community wide education. Providing services for the most vulnerable population and keeping older adults safe from abuse is imperative from a human rights and a moral perspective.

In 2006, the New York City Elder Abuse Network was established. The 50-member coalition creates links and addresses service gaps among police, prosecutors, providers of direct elder abuse services, providers of supportive services and government agencies, medical providers, advocates and academic institutions. If the elder abuse funds are eliminated, this network will be difficult -- if not impossible -- to maintain.

What will happen to the 80 percent who are not eligible? Who will they turn to? Where will they get help? Will they call the police? As the majority of elder abuse is perpetrated by family members, many older adults do not want to involve the criminal justice system. If there are no elder abuse programs, where would the police refer them?

In New York City, the over 65 population is projected to increase by 45 percent by 2030 -- more than three times the increase of younger New Yorkers. Elder abuse will grow, especially in bad fiscal times when people are out of work and financially stressed. These programs conduct extensive outreach. Since the onset of the economic crisis, there has been an increase of almost 30 percent in the number of incoming elder abuse cases.

Continue reading "New York City to Abolish Its Elder Abuse Programs" »

Bedsores, more properly known as pressure ulcers or decubitus ulcers, are lesions caused by many factors such as: unrelieved pressure; friction; humidity; shearing forces; temperature; age; continence and medication; to any part of the body, especially portions over bony or cartilaginous areas such as sacrum, elbows, knees, ankles etc. Although easily prevented and completely treatable if found early, bedsores are often fatal - even under the auspices of medical care says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

They are one of the leading iatrogenic causes of death reported in developed countries, second only to adverse drug reactions. Prior to the 1950s, treatment was ineffective until Doreen Norton showed that the primary cure and treatment was to remove the pressure by turning the patient every two hours.

Contents The definitions of the four pressure ulcer stages are revised periodically by the National Pressure Ulcer Advisory Panel (NPUAP) in the United States. Briefly, however, they are as follows:

Stage I is the most superficial, indicated by non blanchable redness that does not subside after pressure is relieved. This stage is visually similar to reactive hyperemia seen in skin after prolonged application of pressure. Stage I pressure ulcers can be distinguished from reactive hyperemia in two ways: a) reactive hyperemia resolves itself within 3/4 of the time pressure was applied, and b) reactive hyperemia blanches when pressure is applied, whereas a Stage I pressure ulcer does not. The skin may be hotter or cooler than normal, have an odd texture, or perhaps be painful to the patient. Although easy to identify on a light-skinned patient, ulcers on darker-skinned individuals may show up as shades of purple or blue in comparison to lighter skin tones.

Stage II is damage to the epidermis extending into, but no deeper than, the dermis. In this stage, the ulcer may be referred to as a blister or abrasion.

Stage III involves the full thickness of the skin and may extend into the subcutaneous tissue layer. This layer has a relatively poor blood supply and can be difficult to heal. At this stage, there may be undermining damage that makes the wound much larger than it may seem on the surface.

Stage IV pressure ulcer. Stage IV is the deepest, extending into the muscle, tendon or even bone.

Unstageable pressure ulcers are covered with dead cells, or eschar and wound exudate, so the depth cannot be determined.

Suspected Deep tissue injury: Purple or maroon localized area of discolored intact skin or blood-filled blister due to damage of underlying soft tissue from pressure and/or shear. The area may be preceded by tissue that is painful, firm, mushy, boggy, warmer or cooler as compared to adjacent tissue.

Further description: Deep tissue injury may be difficult to detect in individuals with dark skin tones. Evolution may include a thin blister over a dark wound bed. The wound may further evolve and become covered by thin eschar. Evolution may be rapid exposing additional layers of tissue even with optimal treatment.

With higher stages, healing time is prolonged. While about 75% of Stage II ulcers heal within eight weeks, only 62% of Stage IV pressure ulcers ever heal, and only 52% heal within one year. It is important to note that pressure ulcers do not regress in stage as they heal. A pressure ulcer that is becoming shallower with healing is described in terms of its original deepest depth (e.g., healing Stage II pressure ulcer).

Continue reading "Bedsores, Pressure Ulcers or Decubitus Ulcers Can Often Be Fatal" »

The 1987 Amendment to the Older Americans Act identified three separate categories of elder abuse:

Domestic elder abuse usually takes place in the older adult's home or in the home of the caregiver. The abuser is often a relative, close friend, or paid companion.
Institutional abuse refers to abuse that takes place in a residential home (such as a nursing home), foster home, or assisted-living facility. The abuser has a financial or contractual obligation to care for the older adult.
Self-neglect is behavior of an older adult that threatens his or her own health or safety. Self-neglect is present when an older adult refuses or fails to provide himself or herself with adequate food, water, clothing, shelter, personal hygiene, medication, and safety precautions.
Acts of elder abuse
Elder abuse can include:

Acts of violence, such as hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, choking, or burning. The inappropriate use of medications or physical restraints, force-feeding, and physical punishment of any kind also are examples of physical abuse.
Forced sexual contact or sexual contact with any person incapable of giving consent. It includes unwanted touching and all types of sexual assault or battery, such as rape, sodomy, coerced nudity, and sexually explicit photography.
Emotional or psychological abuse, such as name-calling, insults, threats, intimidation, humiliation, and harassment. Treating an older person like a baby, giving an older person the "silent treatment," and isolating him or her from family, friends, or regular activities are examples of emotional or psychological abuse.
Neglect, such as failing to provide an older person with food, clothing, personal shelter, or other essentials, such as medical care or medications. Neglect can also include failing to pay nursing home or assisted-living facility costs for an older person if you have a legal responsibility to do so.
Abandonment or desertion of an older person by a person who has the physical or legal responsibility for providing care.
Illegal or improper use of an older person's funds, property, or assets. This includes forging an older person's signature, stealing money or possessions, or tricking an older person into signing documents that transfer funds, property, or assets.
Risk factors for elder abuse
Abuse of elders is a complex problem with many contributing factors. Risk factors include:

Domestic violence carried over into the elder years. A substantial number of elder abuse cases are abuse by a spouse.
Personal problems of caregivers. People who abuse older adults (particularly their adult children) are often dependent on the older person for financial assistance and other support. This is often due to personal problems such as mental illness or other dysfunctional personality traits. The risk of elder abuse seems highest when these adult children live with the older person.
Social isolation. Caregivers and family members who live with an older person have the opportunity to abuse and often attempt to isolate the older person from others to prevent the abuse from being discovered.
Signs of elder abuse
Signs and symptoms of elder abuse vary widely depending on the type of abuse.

Signs that an older person is the victim of acts of violence may include:
Bruises, black eyes, welts, lacerations, rope marks, cuts, punctures, or untreated injuries in various stages of healing.
Broken bones, including the skull.
Sprains, dislocations, or internal injuries.
Broken eyeglasses or dentures.
Signs of being restrained.
Laboratory reports of overdose or underuse of medications.
Reports from the older adult of being physically mistreated.
An older person's sudden change in behavior.
A caregiver's refusal to allow visitors to see an older person alone.
Symptoms of possible sexual abuse include bruises around the breasts or genital area, unexplained venereal disease or genital infections, unexplained vaginal or anal bleeding, underclothing that is torn or stained, and reports from the older person of being sexually assaulted.
Emotional or psychological abuse is possible if the older person appears emotionally upset or agitated; acts withdrawn or is noncommunicative, nonresponsive, or paranoid; exhibits unusual behavior including sucking, biting, and rocking; or if he or she reports being verbally or emotionally mistreated.
Signs of neglect may include dehydration, malnutrition, untreated health problems, pressure ulcers, poor personal hygiene, hazardous or unsanitary living conditions, and reports from the older person of being mistreated.
Abandonment includes the desertion of an older person at a hospital, nursing facility, shopping center, or other public location.
Signs of financial exploitation include sudden changes in a bank account or banking practice, such as unexplained withdrawals of large amounts of money; additional names on an older person's bank card; abrupt changes in a will or other financial document; disappearance of funds or valuable possessions; unpaid bills or substandard care despite the availability of funds; evidence of the older person's signature being forged; the sudden appearance of previously uninvolved relatives; payment for unnecessary services; and reports from the older person of financial exploitation.

Continue reading "Older Americans Act Identifies Three Separate Categories of Elder Abuse" »

Police filed elder abuse charges against two 38 year old individuals for keeping a 73 year old elder man tied to a bed in their home for nearly three months. The elder was restrained by his ankle and arms, said the police detective investigationg the elder abuse matter. The elder man was fed through a tube and had numerous health problems.

Police investigated the elder abuse claims after receiving a report from Adult Protective Services, says California Elder Abuse Attorney Steven C. Peck who may be contacted toll free at 1.866.999.9085 or on-line at www.premierlegal.org. The abused elder is now living in a long-term care facility thank god.

Many members of our population are elderly or disabled, and elect to have an in-home caregiver rather than move to a full-time care facility. Unfortunately, these caregivers can sometimes be unscrupulous, taking advantage of a situation for financial gain or being just in it for the paycheck and neglecting their patient.
Nearly a quarter of a million Californians become victims of elder or dependent adult abuse each year, and as our population grows and ages, that number is expected to climb. If you or someone you know is elderly or otherwise dependent on another adult for day-to-day assistance, you should know and be able to recognize the signs of abuse.
There are four main types of elder and dependent adult abuse:
Physical Abuse
Physical abuse is just like it sounds: physical. Caregivers, whether a spouse, other relative, or an outside person, inflict physical pain and cause injuries to their charges. Signs include:
• Injuries that don't match the explanations given for them (for example, a black eye or broken jaw from a minor fall)
• Bruises, scratches, or other injuries, especially when frequent or in different stages of healing
• Inappropriate use of restraints or medication
Neglect
Neglect is a little bit more subtle than physical abuse, but is still fairly easy to spot. It, too, is just like it sounds: the caregiver simply doesn't care and ignores their charge. Signs include:
• Poor hygiene (for example, unbathed for an unreasonable amount of time; bedpans or adult diapers unchanged)
• Dirty or torn clothing
• Medical conditions that go untreated; bedsores
• Malnourished or dehydrated (for example, unexplained weight loss; "sunken" appearance to the face; severely chapped lips or hands)
Psychological Abuse
More insidious and difficult to detect than physical abuse or neglect is psychological abuse, in which the caregiver isolates their charge or makes them feel worthless or scared, much like in many domestic violence cases. Signs include:
• The elderly or dependent person becomes withdrawn, secretive, or hesitant to talk freely around the caregiver
• The caregiver isolates their charge, restricting when and with whom contact can be made (for example, the elder or dependent is not allowed to visit friends or family, or even seek non-emergent medical care)
• The elder or dependent adult becomes confused or extremely forgetful, in the absence of another reason for such forgetfulness
Financial Abuse
Financial (also called fiduciary) abuse may not be the most common form of elder or dependent abuse, but it is probably the most well-known. Nearly everyone has heard or read stories of elderly patients who have been swindled out of thousands of dollars by their caregivers. Signs include:
• Unusual bank activity (for example, large withdrawals or fund transfers, increased frequency or types of transactions with no plausible explanation); transactions conducted in manners "out-of-habit" (such as debit transactions when the elder or dependent normally writes checks)
• Unpaid bills, utilities shut-off, or eviction notices; sudden pattern of bounced checks
• Changes in spending patterns, often accompanied by the appearance of a new "best friend"
• Implausible explanations given by a relative or caregiver about an elder or dependent adult's finances
When You Suspect Abuse
Many cases of elder and dependent adult abuse involve more than one type of abuse. For instance, financial abuse is often coupled with psychological abuse, in that the caregiver makes the elder or dependent adult feel as though they are incapable of managing their own finances, or an emotionally abusive caregiver becomes neglectful or even physically assaultive.
If you suspect that an elder or dependent adult is being abused, report it. Adult Protective Services (APS) is a County agency that investigates reports of suspected abuse, and will follow-up on each reported case with an in-person visit to the possible victim. APS social workers will investigate and assess the situation, and will work with the elder or dependent adult to get them the help they need. In cases of criminal abuse, APS will also work with law enforcement to file charges.
Sometimes it can be difficult to acknowledge that potential abuse is occurring, especially when the abuser is a relative or a caregiver from a supposedly reputable agency. However, it is critical to report any suspected abuse as soon as you notice it, since the longer it is allowed to continue, the worse it will get.
Also pay attention to what the elderly or dependent person tells you, such as "My showers are always cold," or "They don't listen to me when I tell them I'm hungry." While it is possible that the person is confused or forgetful (such as when they had just eaten five minutes before telling the caregiver they were hungry again), these sorts of verbal cues can be also signs of neglect or physical abuse.

Continue reading "One-Quarter Million (250,000) Become Victims of Elder or Dependent Adult Abuse Each Year in California" »

CLOSING LOOPHOLES: The 2010 Legislature has taken a giant step toward protecting Florida's most vulnerable residents.

Recently, the state House passed legislation that will close loopholes in the background-screening process for those seeking jobs with children, seniors and the disabled.

Among other things, House Bill 7069 would require that no one can begin work with vulnerable residents until a background screening is complete and the applicant is found to be qualified.

A 2009 report by the Sun-Sentinel, "Trust Betrayed," found that more than 8,700 ex-felons were approved by state officials to work with children, the elderly and the disabled over two decades. Included in this group are career criminals who have committed rape and murder, and crimes against children.

Florida has been delinquent in protecting its most vulnerable. HB 7069, sponsored by Rep. William Snyder, R-Stuart, would close loopholes in the current system and create safer environments for those in the care of others.

Continue reading "Florida Legislature Closes Loopholes Regarding Background Checks for Caregivers" »

The Australian Department of Health and Ageing has released a new report which shows an alarming rise in physical assaults on the elderly in nursing homes: physical assaults increased by more than 50% and sexual assaults by 36%.

Physical and sexual assaults on our elderly in nursing homes is a problem in the United States as well. Earlier this month the Chicago Tribune reported on the widespread problem within the state of Illinois.

The Centers for Disease Control and Prevention has dated statistics on elderly abuse -- "A study conducted in 1996 found that more than 500,000 persons age 60 years and older were the victims of abuse or neglect during a one-year period."

As baby boomers age, the sheer number of elder persons makes the risk of elderly abuse a national problem.

Elder abuse is defined as any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult. Laws and definitions of terms vary considerably from one state to another, but broadly defined, abuse may be:

Physical Abuse - inflicting physical pain or injury on a senior, e.g. slapping, bruising, or restraining by physical or chemical means.
Sexual Abuse - non-consensual sexual contact of any kind.
Neglect - the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
Exploitation - the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else's benefit.
Emotional Abuse - inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g. humiliating, intimidating, or threatening.
Abandonment - desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
Self-neglect
- characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his/her own health or safety.

Often the elderly will suffer in silence, especially if the caregiver is the abuser. Some tell-tale signs that there could be a problem are:

Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment. Be especially wary if the bruises are around the breast or genital areas, as these may indicate sexual abuse.
Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
If you
suspect abuse, report it. If the danger is immediate, call 911 or the police.

Continue reading "Elder Abuse Risk Soars as the Baby Boomers Age" »

A Pennsylvania government study commission has proposed legal reforms to curtail power-of-attorney abuses that have cheated the elderly, the disabled and their heirs.

The 222-page report includes draft legislation and is the result of an 18-month study ordered by the state House after a 2007 series of articles in the Post-Gazette. The articles revealed gaps in the law that had allowed attorneys and family members to divert savings and pension benefits to their advantage.

"The majority of powers of attorney work very well, but when they don't work they cause tremendous problems," says Caliofrnia Elder Abuse attorney Steven C. Peck who may be contacted toll free at 1.866.999.9085.

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The study was ordered after the House passed a resolution by State Rep. Jesse White, D-Washington County, who said he was incensed by reports of POA abuses detailed in the newspaper during 2007.

"I will almost certainly be introducing some sort of legislation for comprehensive power of attorney reform," Mr. White said. Initially, Mr. White and several others had suggested the commission explore adopting a nationwide standard called the Uniform Power of Attorney Act.

The committee did a side-by-side comparison of Pennsylvania law with the proposed uniform act.

"We found that our structure was sound and that we addressed most issues already," said Neil Hendershot, a Harrisburg estate lawyer and expert on POA.

Instead, the committee opted for alterations of the current Pennsylvania law.

Major among them is a provision that would forbid an agent -- the person on whom a power of attorney has been conferred -- from making changes in an estate plan, including pensions and insurance, without such permission expressly granted in the document or unless they obtain the approval of an Orphans Court judge.

That reform, several said, was inspired by one of the cases detailed in the Post-Gazette series. In that instance, the mother of Ronald Slomski, a dying Erie man, used a power of attorney document days before her son died to change the beneficiaries in his pension account from the step-daughters he had raised to Mr. Slomski's two siblings.

The case wound its way through the court system until December of last year, when the state Supreme Court, in a split decision, determined that the language in the law permitted that action, even though it circumvented Mr. Slomski's apparent intentions, as described in his will, to leave the bulk of his estates to the step-daughters.

Questions about power of attorney abuse prompted a hard look by the office of District Attorney Stephen A. Zappala Jr.

After an initial report that raised questions about $40,000 in political donations from the trust fund of an elderly Upper St. Clair widow, Mr. Zappala's office brought criminal charges against her lawyer, Allegheny County Councilman Charles P. McCullough, who faces trial later this year.
Under proposed changes, courts would also have broader powers to order investigations or to intervene in the handling of a power of attorney upon allegations of financial abuse or mismanagement.

Current law requires a third party to demand an account of money handling. The changes would open the door to a court ordering governmental agencies, including prosecutors, to step in early in the process.

In uncertain times, abuse perpetrated against one of the country's most vulnerable populations is on the rise and often flies under the radar.

The problem is elder abuse. Broadly defined, elder abuse is victimization of people over the age of 65. It takes many forms, and there are no nationwide standards for elder abuse or its reporting, making it a significant problem that is difficult to quantify.

According to the National Center for Elder Abuse, somewhere between 700,000 and 3.5 million cases of elder abuse occur every year. Only one in five of those are reported.

Tuolumne County Deputy District Attorney Eric Hovatter has handled all of the elder abuse cases in the county since 2001. According to Hovatter, there are two main categories of abuse: physical and financial.
"Physical can be punching, or mental abuse or neglect. Lots of different things can morph into physical abuse," Hovatter said. "Financial is theft from someone 65 years old or older."
Financial complaints comprise the majority of cases, Hovatter said, although he believes there is more physical abuse happening that goes unreported.
In Tuolumne County, the number of cases prosecuted from start to finish has fluctuated over the past four years from a high of 20 cases in 2007 to a low of 11 in 2009.
Calaveras County, on the other hand, saw a steady increase from four cases in 2006 to 16 cases in 2009.
Although the number of cases in Tuolumne County seems to be dropping, Hovatter said, the financial climate and national reports suggest to him that there might be more going on than meets the eye.
A main reason, research suggests, that elder abuse remains underreported is that the perpetrators are often caretakers and family members that the elder doesn't want to turn in, either because they care for the abuser or they fear retaliation from that person.
A study completed in March 2009, titled "Broken Trust: Elders, Family and Finances," found that 55 percent of crimes in its study base were committed by family member, friends, neighbors or caregivers.
The study was conducted by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse and the Center for Gerontology at Virginia Polytechnic Institute. Its definition of "elder" was 60 years old and above.
A 2003 national study that collected data from adult protective services that included both types of elder abuse estimated that 32.6 percent of crimes are committed by adult children and another 21.5 percent by other family members.
Only 11 states contributed to that statistic due to differing reporting standards.
According to Calaveras County Deputy District Attorney Milt Matchak, elders rely on their family and caregivers to the extent that turning them in for financial or physical abuse could seem even more detrimental.
"Many times, by turning in a perpetrator, they're turning in the person that's caring for them," Matchak said. "They think, if I turn in my son, daughter, or caretaker, what's going to happen to me?"
Sometimes, the family member at fault isn't ill-intentioned, said Pat Ross, the community service officer with the Calaveras County Sheriff's Office.
"If they're not trained, it can get frustrating, get difficult," Ross said. "People who don't start out with the intention of taking advantage think, 'I'm entitled to it or I'm going to be getting it anyway.' "
Strangers commit another 21 percent of financial crimes against elders, according to the MetLife study.
This can be in the form of Internet or mail fraud.
"I don't think they're pitching them to elders, but elders could be more susceptible," Hovatter said. "They trust. Also they're the least likely to report. If they confide that they got scammed, it could be the first step to them losing their independence."
The MetLife study estimates that $2.6 billion is stolen from elders every year.
Aging creates conditions that make people more likely to depend on people they shouldn't, Ross said. Grief, sensory impairment, depression, chronic pain or a prolonged illness can rob people of the self-esteem and energy they need to stand up for themselves.
The elderly report approximately half of the time. Otherwise, it's up to mandatory reporters and concerned citizens.
California state law requires people employed in the financial, health or elder care industries to report crimes against elders. Other mandatory reporters include law enforcement and clergy.
If a mandatory reporter does not report an elder crime, that person can be punished with six months in jail or fined $1,000. If the abuse results in death or great bodily injury, the fine could go as high as $5,000.
Tuolumne County Department of Social Services and the Calaveras Human Services Agency, as well as local law enforcement, handle elder abuse reports.
According to Lynn Nolte, program manager for the Tuolumne County department, the office receives about 25 to 40 calls a month.
"We triage those referrals and assign them to a social worker, either for an immediate or 10-day response based on the level of abuse," Nolte said.
For a social worker to respond, there must be a safety issue, Nolte said. Only 40 to 50 percent of the calls meet the requirements.
The current fiscal climate may also be working against elders. Not only does it make them more attractive targets for abusers, it saps protective agencies of funds needed to ensure seniors stay safe.
"The budget right now is extremely difficult," Nolte said. "We rely on other agencies. We work with faith-based community services and partner with a number of other agencies in the community. Of course their funding is shrinking as well."
There is no funding improvement in sight.
According to the proposed 2010-11 California budget, the governor plans to cut $4.2 billion from the California Department of Social Services. On top of that, if the state doesn't get a proposed $6.9 billion from the federal government, an additional $1.9 billion will be cut from the department.
That would likely result in the elimination of the In-Home Supportive Services program, which provides funding to county agencies that check in on elders.
"Current funding historically has never been enough for Adult Protective Services," Nolte said. "It's very difficult to stay within the budget because you can't not see people. You have to see them, and often times at the end of the year we're looking at not having enough funding because we need to serve our community. It's our responsibility and obligation to serve our community."

Continue reading "California Counties See a Rise in Elder Abuse" »

A California state Senate report said nurse assistants who lost their certification over abuse, negligence or theft in nursing homes were able to go to work as caregivers in assisted living facilities because of a computer tracking loophole.

A Senate subcommittee plans to hold a hearing this week on the findings by an oversight office that show nurse assistants who lost their certification with one state department over misconduct were later approved by another.

The report "Dangerous Caregivers" by the California Senate Office of Oversight and Outcomes revealed a loophole within the state Health and Human Services Agency.

In one case cited in the report, a nurse assistant lost her certification for hitting a blind, developmentally disabled client with a puzzle tray and throwing a softball into another client's stomach. Three weeks later, the Department of Social Services cleared her to work as a caregiver in a small assisted living facility.

In another case, a nurse assistant was decertified for stealing from nursing home residents. Nine months later, Social Services approved her to work as a housekeeper in another home.

"There is no excuse for allowing people with known histories of abuse to work in residential care facilities for the elderly or as caregivers in any other setting," said Michael Connors, long-term care advocate for California Advocates for Nursing Home Reform.

In a narrow sampling using uncommon names, the state report found 20 cases involving nurse assistants whose certifications were revoked by the Department of Public Health then cleared by the Department of Social Services to work as caregivers.

Both departments fall under the purview of the Health and Human Services Agency.

Lizelda Lopez, spokeswoman for the Department of Social Services, said Friday that the department began investigating caregivers last November, when the Senate office started its inquiry.

The department checked all 140,000 caregivers and only found a handful of cases of decertified nursing assistants beyond the 20 mentioned in the report, she said.

The loophole results from the lack of a centralized database of workers that the state departments can check in pre-employment screenings, said John Hill, the consultant who prepared the 32-page report.

"A criminal background check is routine, but what they haven't done is check each other's administrative actions," he said.

Lopez said Social Services and Public Health are now exchanging information every month on disciplinary actions and caregiver applicants.

The state's 197,000 nurse assistants are trained to perform medical-related and caretaking tasks mostly in nursing homes, while some 140,000 caregivers help with the daily living of senior citizens who are generally not ill but need assistance.

Hill noted the loophole is putting some of the state's most vulnerable residents at risk.

The loophole has come to state legislators' attention in the past. In 2006, a Senate bill required Social Services to set up a database of administrative actions by six Health and Human Services departments -- Aging, Health Services, Alcohol and Drug Programs, Mental Health, Social Services and the Emergency Medical Services Authority -- to cross-check prospective employees.

However, the database, which would cost $500,000, was never set up due to budget restraints, he said.

Lopez, of Social Services, said the department believes the centralized system is the best solution, but funding has not been provided. In the meantime, the department is in talks with the other Health and Human Services departments to develop informational exchanges similar to the one with Public Health, she said.

Hill said he started investigating decertified nurse assistants after hearing reports that they were obtaining caregiver jobs.

The investigation used a narrow sample of workers with uncommon names because more exact identifiers, like Social Security numbers and dates of birth, were not available, he said.

The Senate Subcommittee on Aging and Long-Term Care has scheduled the hearing on the report for March 24, 2010.

Continue reading "Nurse Assistants Who Lost Their Certification Over Abuse, Negligence and Theft Are Able to Get Jobs In Assisted Living Facilities" »