Sunday, November 20, 2011

Resident "behaviour issues" in Nursing Homes

I attended a criminal sentencing in a Massachusetts Superior Court for an aide who had been found guilty of 4 counts of assaults on and mistreatment of nursing home elder residents. The sentencing Judge did not sentence the aide to jail because,  astonishingly, he apparently felt sympathy for the aide. Th CNA (Certified Nurse Aide) had been "forced " to work too many hours. And the residents she cared for were sometimes difficult if not "violent" because they had suffered from Alzheimer's disease. As if "resistance" by an ill resident justifies criminal retaliation! Educating the judiciary has become a constant theme in bringing civil cases. Most are unaware or pay lip service to very strict federal regulations prohibiting abuse. state regulations also prohibit abuse:
42CFR§483.13 Resident Behavior and Facility Practices
§483.13(b) Abuse (Ftag 223)
"The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion."
Each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends, or other individuals.

“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.” (42 CFR §488.301)
This also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish.
“Verbal abuse” is defined as the use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to: threats of harm; saying things to frighten a resident, such as telling a resident that he/she will never be able to see his/her family again.
“Sexual abuse” includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.
“Physical abuse” includes hitting, slapping, pinching and kicking. It also includes controlling behavior through corporal punishment
“Mental abuse” includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation.
§483.13(c) Staff Treatment of Residents ( F224 and F226)
The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

§483.13(c)(1)(i) Staff Treatment of Residents
(1) The facility must (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
Our office represented 3 of the victims of this criminal conduct. We were much more successful than the attorney general in bringing justice to the families. At trial, victims who were assaulted and or mistreated received judgements of $300,000, $450,000 and an a third case resulted in a trial settlement.

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