Article source: Nursing Home Law Centre LLC
A woman has just arrived in the emergency room from a nursing home. She has a cracked rib that healed several weeks ago, and a bed sore that looks about 5 days old. The staff in the hospital can clearly see she’s been neglected, but they can’t tell why.
Who caused this? The easiest thing to do would be to contact the nursing home and simply ask.
But they already know that none of the staff will confess, and nobody will get fired because of this. They’ll all have a reason why they weren’t the ones responsible for this and that,
Don’t mistake this for an accident, though.
This happens all over the country every day, and believe it or not, you can use it to build a legal strategy.
Where Things Start to Go Wrong in Everyday Care
| In the U.S., the elderly lose an estimated $28.3 billion (USD) each year because of elder abuse (e.g., exploitation, neglect). – National Council on AgingOver 90% of nursing homes in the U.S. have been cited for at least one violation of federal health/safety standards. – U.S. Department of Health and Human Services |
How can it be that you can’t point to someone and say they’re responsible? Actually, it makes perfect sense when you take a look at what goes on in an average nursing home.
One resident ends up being cared for by many staff members, and the supervisors are mostly in their offices the entire time.
The problem is that there’s no single person who keeps an eye on a resident 24/7.
The one who helped them with breakfast goes home after lunch, and the nurse who came for the afternoon shift wasn’t here when the aide noticed a small red dot on the senior’s back in the morning. And although people do write stuff down, what they write and how detailed it is depends on how busy and tired they are.
This creates what’s known as a handoff gap.
It might sound like a technical term, but really, it just means that each shift assumes the previous shift did its job.
Here’s a quick example to demonstrate:
A resident has to be turned every 2 hours to prevent bed sores. The aide who was here in the morning was too busy to do it, but they didn’t leave a note about it. So, the afternoon aide came in, saw the chart, and that there was no note on it, and figured the resident had been turned on time. The resident, however, now goes 4 hours without being moved, and this happens quite a bit in nursing homes.In fact, bed sores in nursing homes aren’t nearly as rare as you might think.
The next day, a nurse walks in and sees a small red patch. This isn’t THAT alarming, but at this point, 3 different people have all missed parts of their daily tasks, so an open sore is the result of a dozen people not doing their jobs correctly.
And this is why things are so tricky – you have no one to point your finger at.
How Defense Can Turn Confusion Into Strategy
Here’s how defense lawyers use this fog of a shared responsibility to their advantage.
Splitting the Timeline Into Pieces
A whole week of care gets chopped up into tiny slices, so it becomes more obvious how many people care for the residents. So, they’ll ask the morning aide what happened between 7 A.M. and noon, then they’ll ask the afternoon nurse what happened after 1 P.M. Each person will describe a little piece of the day, and nothing will look clearly wrong in those pieces.
By the time the lawyer’s done, there will be no clear ‘This is when things went bad’ moment.
Questioning the Records
The defense will definitely go after the paperwork because records in a nursing home simply can’t be perfect. There’s too much to do for everyone to write every single thing down, and on time.
Of course, the defense team will use this to show that the records don’t prove anything for sure.
They don’t even need to show the records are wrong; messy works just fine.
Spreading Responsibility Across Everyone
Defense lawyers won’t miss the opportunity to remind the jury just how many people are involved in caring for a single resident: 2 aides, 3 nurses, a physical therapist, a social worker, a doctor… The list goes on and on.
How can you blame one person when there are so many people involved?
Framing the Case as ‘It Just Happens’
The defense might go as far as to say that the condition the resident is in isn’t truly anyone’s fault. With the messy records and the split timelines, it can be easy to convince the jury that the problem developed on its own.
Bruises can be from the senior just moving in their bed, and bed sores?
Older skin is thinner and more susceptible to breaking down, so ‘it happens’.
Conclusion
In short, if there’s no clear proof that a specific person missed a specific task at a specific time, the defense can build a story of how this is something sad, and they feel sorry for the seniors, but it was unavoidable.
So, are the staff members lazy? Or is it that the lawyers are evil?
It’s neither. The issue is within the system that spreads the responsibility so thin that it can actually disappear. And until that changes, you can’t blame anyone.
Not the lawyers, not the staff, not the supervisors.
