California Elder Law Attorney Blog

Johnnie was 77 years old when she was treated at Marshall Hospital for pneumonia. She recovered and went to El Dorado Care Center in Placerville for physical therapy to regain her strength, then go home.

But two weeks into her stay in the nursing home, her health had deteriorated. She was rushed back to the hospital, where she died in 2008.

"If she had received proper care, she would still be alive today," says Encino Nursing Home and Abuse Attorney Steven C. Peck.

He sued El Dorado Care Facility and parent company Horizon West, which owns 27 nursing homes.

"She basically did not receive care. She was neglected, warehoused,"

Esco sued for elder abuse and wrongful death. The suit alleged the nursing home staff failed "to provide basic custodial and nursing care services, a failure to assess and treat her pain and a failure to prevent Mrs. Esco from developing a severe and life-threatening bowel impaction."

It also alleged that Horizon West "failed to staff El Dorado Care with sufficient numbers of trained and supervised caregivers."

In taped depositions, employees say they were understaffed.

Horizon West spokesman Dan Niccum would not comment on the Esco case, citing the Health Insurance Portability and Accountability Act and company patient privacy policies.

He did talk to KCRA 3 about overall patient care and staffing.

"It's our position that, in all instances, and it's our goal in every facility, that every resident receives appropriate and timely care," he said.

Niccum said since 2005, Horizon West has exceeded state minimum required staffing levels and is implementing quality improvement changes.

But Clement said her research shows Horizon West increased its acuity levels, accepting more of the sickest and most expensive Medicare patients, while at the same time, decreased the nursing staff qualified to care for them.

She said Horizon West puts profit above patient care.

"That is probably the most ridiculous statement that you could make about Horizon West," Niccum contended.

He said Horizon West has lost money in the past five years.

"I have a real issue with the portrayal of Horizon West as a greedy corporation, which it is not. Or B, being a corporation that doesn't care, because that is all we are about. We are a company that cares," Niccum said.

Esco and Horizon West settled the lawsuit out of court. They won't say for how much, but KCRA 3 is told the nursing home paid a significant amount of money to Esco.

The California Department of Public Health licenses and regulates 1,200 nursing homes statewide.

It also investigates complaints.

It released findings in the Esco case in April, finding El Dorado Care Center failed to consult with a physician and notify the patient's family when her condition worsened, failed to ensure prompt care and its staff failed to properly administer medications.

The public health department can cite and fine nursing homes; the most serious violations involving patient deaths draw fines up to $100,000.

In the Esco case, the state fined El Dorado Care Center $18,000.

"My wife's death was ruled unwarranted, but the facility was fined $18,000. That is ridiculous," Esco said.

The public health department issued a statement saying "The violations... while severe and likely to cause harm and possibly death to the patient, could not be isolated as the direct cause of death in this case."

It said it "levied the highest fine the law allowed."

Carole Herman, with Foundation Aiding the Elderly, is appealing the decision.

"She definitely died from the lack of care at this convalescent hospital, and the state did not give them the proper citation," Herman said.

Niccum said "the people who work in this facility today, are members of this community. They care about what goes on in this facility. They are in this industry because this is what they love to do."

KCRA 3 reviewed state records related to Horizon West's 27 nursing homes. In the past five years, the public health department has issued 195 citations, totaling $700,000 in fines.

Niccum said, as the largest skilled nursing provider in the Sacramento area, the numbers aren't surprising.

"Our entire team focus every day is on improving the quality of care we provide our residents," he said.

But advocates and Esco believe even one citation is too many.

The pictures of bed sores taken from nursing home abuse victims depict the harsh reality of nursing home abuse that has become a widespread national problem. Reports on nursing home abuse show that it affects at least 30% of nursing homes across the county, and this number is a gross underreporting says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

Pictures of bed sores show that the abuse experienced in nursing homes is a severe problem, with some residents suffering such neglect that bed sores were not the only side effect. The nation has serious decisions to make in beginning to heal the vast problem of nursing home abuse and prevent instances of pictures of bed sores appearing in reports and articles. Nursing home abuse is one of the largest focuses that legislators must deal with since pictures of bed sores and other serious abuse effects have come into the spotlight.

Continue reading "Have Bed Sores, Pressure Sores aka Decubitus Ulcers Become a Nationwide Nursing Home Abuse and Neglect Problem?" »

California State health insurance regulators are cracking down on insurance brokers who prey on elderly consumers confused by new federal health insurance rules.

On Tuesday, the Department of Managed Health Care took steps to bar a Folsom insurance agent from selling Medicare Advantage plans after she allegedly defrauded at least 12 capital-area seniors, who then incurred thousands of dollars in unexpected medical bills.

The agent, identified by state officials as Nadia King, allegedly canceled the existing Medicare coverage of her clients and enrolled them in Medicare Advantage plans run by private insurers.

King could not be reached for comment. She has until the end of the month to appeal the decision to revoke her privilege to sell Medicare Advantage products.

She is one of two dozen agents across the state getting legal scrutiny because of what officials said was deceptive marketing aimed at seniors.

Pauline Eckels, 98, of Citrus Heights was identified by the state as one of King's alleged victims.

Eckels, who has been on Medicare since 1977, recalls a day sometime before Christmas when King knocked on her door.

She said they spent about a half hour talking, and that she provided personal information to King during the conversation. "I already had insurance, but she said she was going to try and help me get cheaper insurance."

Eckels said she never authorized King to cancel her current plan. But to her surprise a week later, her pharmacist said her prescription coverage was no longer in effect.

She said she doesn't remember much of what was said during her talk with King. "Put yourself in the shoes of a 98-year-old," she said, adding that "It messed me up good."

Federal health officials have reached out to states to stamp out fraud and deception in the Medicare program.

"Every time there is a change in one of our programs, it always creates an opportunity to take advantage of someone who doesn't understand the change," said David Sayen, administrator for Medicare's San Francisco regional office.

As the national debate over health care legislation intensified, state and federal officials said they began seeing a marked increase in complaints from consumers about possible scams and insurance agents seeking to persuade seniors to change their Medicare coverage.

Confusion over changes to the country's health care system "opened up a floodgate of deceptive sales practices and fraudulent products," said Cindy Ehnes, director of the Department of Managed Health Care.

"Deceptive marketing is nothing new," she said. "Because of the recent rhetoric around health insurance, the lack of detail ... it has created a real opportunity for less-than-scrupulous operators who are out there."

State officials say scores of other seniors may have fallen victim to scams and unethical marketing ploys.

People who prey on vulnerable populations do so because they know their victims are less likely to contact authorities, said Michael McClelland, the chief of enforcement for the California Department of Managed Health Care.

The financial rewards for unscrupulous agents can quickly add up. Agents who enroll new customers in a Medicare Advantage plan typically receive commissions of $350 to $500, McClelland said.

In a traditional Medicare policy, the federal government acts as an enrollee's insurance company. Under Medicare Advantage, among the most powerful programs within Medicare, the federal government pays premiums to a private insurer to administer benefits.

According to the state's complaint, King enrolled her elderly clients into Medicare Advantage plans without their consent. She allegedly made misrepresentations while marketing the plans.

Continue reading "Are Regulators Cracking Down On Elder Abuse Medicare Fraud?" »

Nurse Craig Peske was fired from a hospital in Wausau, Wis., in 2007 after stealing the powerful painkiller Dilaudid "whenever the opportunity arose," state records say. In one three-month period, he signed out 245 syringes full of the drug -- nine times the average of his fellow nurses.
Hospital officials reported him to Wisconsin nursing regulators and alerted police.

Six months later, Peske was charged with six felony counts of narcotics possession. But by that time, he had used a special "multistate" license to get a job as a traveling nurse at a hospital 1,200 miles away in New Bern, N.C.

"When I went to go for the job in North Carolina, I looked at the status of my license, and it was still active," says Peske, 36, who was later convicted of two felony drug charges. "That kind of surprised me, so I figured I would take it."

The ease of Peske's move illustrates significant gaps in regulatory efforts nationwide to keep nurses from avoiding the consequences of misconduct by hopping across state lines.

The two states in which Peske worked are part of a 24-state compact created to help get good nurses to areas where they are needed most. Under the decade-old partnership, a license obtained in a nurse's home state allows access to work in the other compact states.

But an investigation by the non-profit news organization ProPublica found that the pact also has allowed nurses with records of misconduct to put patients in jeopardy. In some cases, nurses have retained clean multistate licenses after at least one compact state had banned them. They have ignored their patients' needs, stolen their pain medication, forgotten crucial tests or missed changes in their condition, records show.
(Taken from USA Today Article)

One of the most serious issues facing the elderly today is abuse by their caretakers. This harm can take the form of physical, emotional, sexual, neglect or exploitative abuse. Unfortunately, the elderly are often exploited, especially if they're mentally susceptible to manipulation or confusion. Although physical signs of abuse may be the most obvious, personality changes can also be a sign that abuse is happening. You should always keep your guard up for possible red flags indicating an abusive situation. In the event that you suspect your elderly loved one is the victim of elder abuse, you may need the help of California Elder Abuse Attorney Steven C. Peck in order to get proper compensation.

Bed sores, also known as pressures sores and decubitus ulcers occur when certain parts of the body (such as the tailbone, elbows, buttocks or heels) are put under pressure causing the skin to break down and become infected. In the most severe cases, bed sores can progress beyond the skin and affect the bone beneath. This can cause infection to the bone, and can even necessitate amputation if not treated. However, bed sores are entirely preventable with proper medical care and treatment.

One way to prevent the development of bed sores is by noticing a problem area and consistently turning the patient and changing his or her position. If you or someone you love has developed bed sores, pressure sores and / or decubitus ulcers and you believe it was due to the negligence or neglect of another party, you may be entitled to financial compensation under the law. Contact Steven Peck's Premier Legal toll free at 1.866.999.9085 to talk to an experienced California Nursing Home Abuse And Neglect Attorney.

Other causes of bed sores, pressures sores, and decubitus ulcers include the following:

A bed sore can develop if a patient remains in the same position for an extended period of time and cannot move without assistance. Patients must be turned or moved every two hours to prevent this kind of pressure from developing. Also, a good mattress and additional padding can help with prevention.

Excess moisture can lead to bed sores, pressure soress and decubitus ulcers. It is important for patient's skin to be kept clean and dry and free from urine or feces. The sheets must also be kept clean if the patient suffers from incontinence.
Poor nutrition can negatively affect skin health, which in turn makes a patient more susceptible to sores and infection.

Doctors, nurses and other health care practitioners have a professional responsibility to provide an optimal level of care to all patients. This includes elderly patients who are in need of extra care due to their feeble condition. When this is not done and dangerous conditions develop, you may be able to sue for nursing home abuse and neglect.

While bed sores do not directly cause osteomyelitis, the open wounds that accompany severe bed sores leave many patients susceptible to infection. Osteomyelitis is an inflammation of the bones that is caused by bacteria. In adults, the most common types of osteomyelitis causing bacteria are S. Aureus, Enterobacter and Streptococcus. In cases of severe bed sores (also referred to as decubitus ulcers, pressure ulcers or pressure sores) the bacteria enters the body through the open wound and attacks the bone. Once the bone becomes infected, enzymes are released that restrict the bodies ability to heal. If left untreated osteomyelitis can spread into the bone marrow and surrounding joints says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

In order to provide the best prognosis, osteomyelitis must be identified as early on as possible. Early signs of osteomyelitis may be treated with antibiotics. More advanced cases may require surgical debridement. In severe cases of osteomyelitis, amputation may be required to prevent the infection from spreading. Sadly, the mortality rate for people with osteomyelitis related to bed sores is extremely high.

Continue reading "Open Wounds That Accompany Severe Bed Sores, Pressure Sores and Decubitus Ulcers Leave Many Elders Susceptible to Infection." »

According to the National Center on Elder Abuse (NCEA), "elder abuse" is a term referring to 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.

The victims of elder abuse come from all walks of life, but they share the common characteristic of being over the age of 60 and in some states over the age of 65 says California Elder Abuse Attorney Steven C. Peck.

Abusive actions result in physical, emotional, sexual or financial harm to the victim and can be the result of neglect or abandonment. The key factor is the infliction of pain, injury or the deprivation of a basic need.

While many think of elder abuse as resulting from the actions of others, a recent report by the Clearinghouse on Abuse and Neglect of the Elderly (CANE) finds that the most common type of elder mistreatment reported to adult protective services nation-wide is the result of self-neglect.

In situations of self-neglect, addressing the problem is often difficult because self-neglectors refuse services or resist interventions which will likely remedy or resolve the problem.

There are several risk factors for elder abuse to watch for, according to the University of Washington Division of Gerontology and Geriatric Medicine. These include characteristics of the abused person, living situations and characteristics of the abuser.

Usually, the mistreated elder suffers from poor health accompanied by functional impairment, cognitive impairment and social isolation. Elder abuse generally occurs in a shared-living arrangement where there may be some form of external stress, and it frequently involves strained financial situations.

The abuser may have a history of substance abuse or mental illness, may be dependant on the victim in some way and often has a history of violence.

Elders can take steps to protect themselves from elder abuse, and more importantly, they should take steps to maintain their health. Professional help should be sought in the event of addiction, alcoholism or depression.

Support services should be utilized if domestic violence is present. Seniors should plan for their own financial and health care future. Whenever finances are involved, seek independent advice from a trusted, knowledgeable and unbiased source before making a decision. Stay active in the community, and do not become isolated. Finally, know that you have the right to express your preferences and concerns.

Protection of others from abuse involves knowing the warning signs. Elders and others should keep a watchful eye on their loved ones, friends and neighbors and should be unafraid to voice their concerns. While elder abuse is a serious problem, government and private organizations and Elders themselves are taking an active role in its detection, prevention and elimination.

The warning signs of elder abuse are: (1). Signs of physical injury or unexplained marks. (2). Signs of restraint. (3). Signs of neglect such as bedsores, soiled clothing, malnutrition, dehydration or unexplained weight loss. (4). Injuries to the genitals or breasts. (5). Frequent arguments between an elder and a caregiver or other person in a close relationship with the elder. (6). Sudden changes in an elder's living arrangements. (7). Repeat or unreasonable violations of an elder's privacy by another person. (8). Changes in behavior, particularly if they involve withdrawal, anxiety, agitation or depression. (9). Sudden financial changes, unusual bank activity, unpaid bills or a discrepancy between means and standard of living and (10). An elder expressing that he or she is being abused or exploited.

Continue reading "Elder Abuse Is The Intentional Or Reckless Acts That Cause Harm To Vulnerable Adults" »

What are Bed Sores, Pressure Sores also known as Decubitus Ulcers?

Bed sores are ulcers that occur on areas of the skin that are under extended periods of pressure. The pressure may be a result of lying in bed, sitting in a wheelchair, and/or wearing a cast for a prolonged period of time says California Nursing Home Abuse and Neglect Attorney Steven C. Peck.

Bed sores can occur when a person is bedridden, unconscious, unable to sense pain, or immobile. Bed sores are ulcers that occur on areas of the skin that are under pressure from lying in bed, sitting in a wheelchair, and/or wearing a cast for a prolonged period of time.

Bed sores are commonly found on the tail bone area, hips, back, elbows, heels and ankles. They can become deep, extending into the muscle.

Bed sores are also called Decubitus Ulcers and Pressure Sores. indicates Los Angeles Elder Abuse Lawyer Steven C. Peck.

Can Bed Sores be Treated?

Yes. It is important to treat bed sores as soon as they appear. If left untreated, the skin can break open and become infected. The treatment will depend on the severity of the sores and may include several methods. Treatment is more difficult if the skin is broken.

Common treatments of bed sores include:

•removing pressure on the affected area
•protecting the wound with medicated gauze
•keeping the wound clean
•medication (antibiotics and pain relievers)
•antibiotic ointments
•surgical removal of dead tissue
Can bed sores be prevented?

Yes. Some of the ways to prevent bed sores are:

•good nutrition
•clean and dry linens
•frequent turning and repositioning of immobilized individuals
•providing soft padding in wheelchairs and beds to reduce pressure
•keeping the skin clean and dry

Continue reading "What Are Bed Sores, Pressure Sores also known as Decubitus Ulcers?" »

Contractures are a medical condition where a joint is held in a fixed position due to the shortening of a muscle or tendon due to stress exerted on the muscle or spasticity (uncontrolled muscle movement). Older patients and those with limited mobility are especially prone to develop contractures. Contractures most commonly form in:
•Hands
•Feet
•Arms
•Legs
Once an individual has developed contractures, little can be done to alleviate the problem aside from aggressive orthopedic surgery. Consequently, medical facilities (hospitals and nursing homes) should provide physical and occupational therapy to people who are at risk for developing contractures and to keep the body flexible.

Once a person has developed contractures they are at a heightened risk for developing bed sores, also known as Pressure Sores and Decubitus Ulcers due to their bodies limited ability to move- with or without assistance and the unnatural pressure put on the body in a rigid state.

The rigidity that accompanies contractures generally means that many of the repositioning techniques commonly used to prevent bed sores may be unfeasible. As a general rule, the more immobile an individual is, the higher likelihood they have in developing bed sores. Long Term Care Facilities have the duty to prevent bed sores, pressure sores and Decubitus Ulcers.

Continue reading "Contractures Can Be A Cause of Decubitus Ulcers, Bed Sores and Pressure Sores" »

Definitions of what constitutes as Elder Abuse are also diverse: some sources define elder abuse as only physical abuse, while other sources include emotional abuse, sexual abuse and financial abuse. Accurate numbers are also extremely difficult to compile since many incidents of abuse go unreported. Many elderly are afraid or ashamed to report incidents of abuse, especially if the perpetrator is a family member. Seniors at times are emotionally or physically abused by a familiar person, and are often unable to recognize it as abuse or rationalize it says California Elder Abuse Attorney Steven C. Peck.

What can be done to eliminate incidences of elder abuse? Society should shoulder the responsibility to protect the elderly, but it begins with the family of the senior. Many of the children and other relatives of the elderly feel that once they have a care giver to care for the elderly their work is done. Far from it, they need to remain vigilant in directing and overseeing that good care is in fact what is provided.

When visiting an elder loved one, you should be alert to the warning signs of abuse:

Emotional or Psychological Abuse:

Are there insults or threats directed at the elder? Are they living in social isolation? The elder may be extremely upset, withdrawn, unresponsive, or exhibiting other unusual behavior. He or she may have a vacant look in their eyes or exhibit fear; they may not always express those verbally, so look for signs in their face or behavior.

Physical and Sexual Abuse:

Look for suspicious bruises or other injuries. Look for signs of restraints, such as a rope burns. See if he or she shows sudden changes of behavior, such as unexplained anger, fear, withdrawal, or has become very quiet. Note if a worker or caregiver refuses to let you visit the elder, making all kind of excuses.

Neglect:
Look for signs of malnutrition, if there is noticeable weight loss, dehydration, bed sores, or if personal hygiene is noticeable neglected. Note if the elder is sitting in soiled clothing, unshaven, unkempt, without dentures, or with long or dirty nails, are they walking around at midday still wearing pajamas? Listen to complaints from the senior as to whether or not their aide is listening to them or following their wishes and follow up on them.

Financial Abuse:

Keep an eye out for unexplained bank withdrawals, unauthorized use of bank and credit cards, reports of stolen or missing checkbooks and bank cards, or if your parent or elder writes checks as a loan or gift to the aide. Be on the lookout for valuables suddenly disappearing. Monitor any sudden changes in the will or banking documents, and be alert if assets are suddenly transferred to a family member or to someone outside the family.

Continue reading "What Constitutes Elder Abuse and Neglect" »

Every American deserves to live his or her golden years with dignity and respect. Unfortunately, too many of our country's seniors are abused and neglected, often by the very people responsible for their care. According to the best available estimates, approximately 700,000 to 3.5 million older Americans are abused, neglected, or exploited each year. Elders who experience abuse, neglect, or self‐neglect face considerably higher risk of premature death, up to 300% higher, than elders who have not been mistreated. Elder abuse can occur anywhere, and it affects seniors across America, of all socioeconomic groups, cultures, and races. Across these groups, however, studies show that the majority of victims are female.

In response to this growing issue, on June 15, 2006, The International Network for the Prevention of Elder Abuse collaborated with organizations around the globe to launch World Elder Abuse Awareness Day.

Also in 2006, provisions were added to the Violence Against Women Act (VAWA) to allow those funds to assist victims of elder abuse and late life domestic violence. But there is still much work to be done. New provisions protecting the elderly are the smallest appropriation of VAWA funds at about 1%, and only 1.5% of domestic violence programs have support groups for older victims.

Today, we recommit ourselves to fighting elder abuse. To commemorate the 5th Annual World Elder Abuse Awareness Day, agencies and organizations across the country are encouraging individuals to recognize this underreported issue and raise awareness about the mistreatment of seniors. This is especially important, as research suggests that elder abuse is significantly under-identified and under-reported, and that as few as 1 in 6 cases of elder abuse come to the attention of authorities.

The HHS Administration on Aging and the Department of Justice are co-sponsoring an event to highlight the issue. And the National Center for State Courts is launching its Center for Elders and the Courts website, which will provide tools and information on aging issues, elder abuse, and guardianships for judges and court staffers. Statewide activities will also occur throughout the day to join the effort to protect our nation's elders.

Continue reading "Too May Seniors Are Abused and Neglected" »

Assisted living facilities also known as board and care and RCFE's 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 says California Elder Abuse and neglect Layer Steven C. Peck.

A. 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 (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. 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. indicates California Elder Abuse Attorney Steven C. Peck.

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. This author has used the ATLA list serve, and random calling of facilities to locate qualified experts.

B. Evaluating the Assisted Living Case

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). 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 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. 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, California enacted the Elder Abuse Dependant Adult Civil Protection Act in 1992.

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.

8. Americans with Disabilities Act/Fair Housing Act. The Fair Housing Amendments Act of 1988 (FAA)[ 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, 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.

Decubitus ulcers are also called pressure sores or bed sores. They are caused by prolonged pressure on an area that lies just over a bone. The skin over the hip, tailbone, heels and elbows is often an area of pressure sore development. The pressure may be created by an object such as a bed or wheelchair. The pressure cuts off blood circulation to the area, and the tissue in the area may die if the person's position is not changed. People who are not able to move their bodies easily, such as those suffering from an illness, disability or weakness, are most susceptible to pressure sores states California Nursing Home and Abuse Attorney Steven C. Peck.

Older people often have thinner skin, fat and muscle layers than younger people and are therefore more susceptible to pressure sores. If someone is underweight or suffering from malnutrition he or she is more likely to develop pressure sores, since there is less fat to cushion the pressure on the bone. Friction created as a body part slides over the pressure area can also cause a sore. Moisture trapped in the area of pressure (such as moisture created from incontinence or perspiration) can cause the skin to break down. Some people with diabetes have circulation problems and are more prone to pressure sores.

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Elder abuse takes many forms -- physical, emotional, financial and neglect -- but seniors might not recognize abuse or be reluctant to talk about being hurt by people they trust.

"Elder abuse is basically taking advantage of an older adult or putting them at risk," says California Elder Abuse Attorney Steven C. Peck. Depending on the type of abuse, there are a number of red flags.

"It can be injuries, bruising, missing teeth, broken false teeth or problems with hearing aids or glasses -- that could be the result of physical abuse," "Emotional abuse is much more subtle. You may see people who used to be out and vibrant in the community no longer going out and being engaged with friends or no longer carrying on long conversations on the phone because they're living with extended family and they're not free to have those conversations."

There could be a sign of financial abuse if a person suddenly discontinues eating out with friends. That could be related to the economy and people's retirement incomes, but it can also signal that a vulnerable senior's assets have been seized by adult children -- sometimes to support their addictions.

"We've heard some real horror stories about large amounts of money that people have grabbed from parents," states California Financial Elder Abuse Attorney Steven C. Peck.

"There are lots of people who are victims of abuse in one way or another and they may not know it is abuse or they may not know how to deal with it," Peck says.

Estimates suggest only one in 10 cases of older adult abuse is officially reported. Many seniors are women who lived in a household where they might have had little responsibility for family finances, yet in their later years they end up dealing with money matters since they tend to outlive men.

"It's important they learn how to deal with these issues," Peck says. "There are some things that you can do to protect yourself and there are things you can do if you are a victim of abuse."

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