Illinois Injury and Mass Tort Lawyer Blog

Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversight, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

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In a recent case, an Illinois appellate court recently decided that a nursing home was required to turn over certain documents in a medical negligence lawsuit after a resident fell at the nursing home. The resident in the case was an 88-year-old woman who was allegedly injured in a fall while she was a resident of the home. The plaintiff, who was the patient’s guardian, filed a claim on behalf on the patient’s behalf and was trying to get a copy of an internal report from May 2012 after the patient’s fall at the home.

The nursing home argued that the internal documents concerning the patient’s fall were protected under the Illinois Medical Studies Act and under the Long-Term Care Peer Review Act and Quality Assessment and Assurance Protection Act.

The Quality Assurance Act and the Medical Studies Act

The Quality Assurance Act protects proceedings and communications involving a peer review or a quality-assessment-and-assurance committee at long-term care facilities. The Medical Studies Act is a similar act that also protects peer-review proceedings and communications but applies to medical facilities. The laws protect certain information in order to encourage internal studies to improve care for patients.

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Nursing home abuse often goes unreported due to the patient’s mental health and vulnerability. It can be difficult to detect abuse or neglect because family members are not present 24 hours a day. It also can be difficult to prove allegations of abuse because the nursing home resident may be unable to testify due to mental health issues such as dementia, or because the resident is no longer alive. That being said, there are laws that protect the rights of residents in order to protect them from cases of abuse or neglect, and anyone suspecting a loved one is being abused in an Illinois nursing home should consult with a dedicated personal injury attorney.

Protections for Nursing Home Residents

There are different statutes and regulations that protect the rights of senior citizens and nursing home residents. A central statute in Illinois is the Nursing Home Care Act (NHCA). The Act establishes a resident’s “bill of rights” and creates a system to resolve claims under the Act. Under the NHCA, nursing homes are liable to residents for any intentional or negligent act or omission that causes an injury to a resident. Neglect is defined as a facility’s failure to provide adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living necessary to avoid physical harm, mental anguish, or mental illness for a resident.

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On February 22 of this year, the United States Supreme Court will hear arguments in a case that may greatly affect nursing home care in this country. According to one news source, the case considers the legality of arbitration agreements signed by representatives of nursing home residents.

In that case, two nursing home residents died in nursing homes. Their families filed lawsuits against the nursing homes after their deaths, but the nursing homes tried to force the families into arbitration under signed arbitration agreements. The Kentucky Supreme Court previously ruled that nursing home residents had not explicitly allowed their representatives to enter into arbitration agreements, and these agreements were not binding as a result.

The nursing homes in the case argue that states cannot place more of a burden on the creation of arbitration agreements than they would on creating any other contract. Long-term care providers contend the decision “poses a substantial threat to the long-term care industry at a time when demographic trends dictate that provision of long-term care could become increasingly important.” They say the Federal Arbitration Act and federal policy that favors arbitration preempt state laws like Kentucky’s. They argue the FAA was intended to make arbitration agreements equally as enforceable as any other contract, unless there are grounds that invalidate them just as in any other contract.

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