In this episode Jonathan Rosenfeld chats with James M. Morgan an Attorney at Lanzone Morgan LLP. Here, they discuss nursing home abuse and how to handle it from a legal perspective.

They discuss into 4 key issues related to nursing home abuse and litigation:

1) What is Nursing Home Abuse?

2) How do You Report Nursing Home Abuse (Who Do You Report Nursing Home Abuse To)?

3) What does an investigation by state agencies do and how does it work?

4) At what point should the family of a resident consider a civil lawsuit against a nursing home?

Read the Transcript

Download the PDF

Jonathan Rosenfeld:

Hello, everybody. I am Jonathan Rosenfeld and today on the Personal Injury Podcast I have my friend and colleague, Jim Morgan. Jim is an attorney in California and he is a named partner at Lanzone & Morgan, and the bulk of Jim's practice is related to nursing home negligence and elder abuse. Today, I want to talk with Jim about one of the real emerging areas of litigation in the field of personal injury law, and really, this is specific to nursing home care, is nursing home abuse. Jim has been practicing in this area for many, many years, and when it comes to these types of cases, I feel very fortunate to have him with me today to really answer some questions that people and families really come to us continually related to their care of their family member.

Jonathan Rosenfeld:

First up, Jim, I really appreciate you joining me today.

James M. Morgan:

Yeah, thanks for having me.

Jonathan Rosenfeld:

Now, today, we're going to talk about something called nursing home abuse. Nursing home abuse seems to me like the most broad, general term ever. In the field of personal injury law, a lot of times we talk about a surgical error case. We talk about a car accident case. We talk about a truck accident case, but a nursing home abuse case seems like it's the most over, all encompassing term ever. I guess, to begin with, can you just, in your mind's eye, give us an idea of what that term means? What does nursing home abuse mean?

James M. Morgan:

Yeah, well, you're really right on that because all the other stuff you mentioned, those are event cases where there's a car accident and that's an event. Somebody does something to somebody else. That can be within the realm of elder abuse or nursing home abuse, because you can have physical abuse cases where a caregiver is hitting a patient or resident or choking them. We've had those cases, or a sexual assault on a resident, but believe it or not, most of the nursing home abuse cases are neglect cases, which is really a failure to do something, so it's not an event.

James M. Morgan:

It's not a CNA or a nurse or a care provider doing something to the resident physically. It's more what they're not doing for the resident. They're not giving them sufficient water so that they get dehydrated, or they're not turning them and repositioning them to prevent them from getting bed sores, or they're not providing enough supervision or assistance to go to the bathroom so that the resident ends up falling and fracturing their hip. When we say elder abuse or nursing home abuse, most of our clients and callers, they're really talking about neglect and failing to provide proper care to the resident as opposed to actually doing something for the resident.

Jonathan Rosenfeld:

Interesting. In most of these cases, it's really just a systemic breakdown, almost, when it comes to the care of these patients. I've seen these cases. I know you've worked on many, many of these cases, and it seems to me like a lot of these cases, like you mentioned, it's not an isolated episode or event, it's a systemic breakdown where there's maybe not enough staff available to care for these patients or maybe the staff is not trained sufficiently to care for these people. Is that the type of situation that you see?

James M. Morgan:

Absolutely, and in fact, you really hit the nail on the head. Well over 50% of our cases result from lack of staff or insufficient number of staff. It's not that the caregivers are necessarily bad people who are doing bad things. We get that, too, but it's really, they don't have enough time because they have so many patients, so one person can't feed or give a bath to 20 different residents on their shift or two meals and a bath to that many residents, so well over 50% of our cases are a result of just the facility not hiring enough staff to take care of the residents.

James M. Morgan:

Some of it's not necessarily not enough staff, but a lack of training of the staff, so the staff doesn't know how to prevent bed sores or to provide fall prevention or cautions, or they have no training on how you get somebody with Alzheimer's or dementia to eat their whole meal when they say, "Oh, I'm not hungry," or, "I don't want to eat." They don't know what to do. They take their tray away and they say, "They don't want to eat dinner." They really don't have the training, so I'd say the vast majority of our cases come down to either insufficient number of staff or insufficiently trained staff.

Jonathan Rosenfeld:

You mentioned a bunch of episodes involving cases that you see on a fairly regular basis, falls, pressure sores, medication errors, patients who may wander from a facility, patients who may become dehydrated. Now you're sort of going into a new phase, if you will, of COVID, where family members, a lot of times, they may not be able to see their family member for some time over the past year, but now, some of the restrictions in various areas of the country are starting to lighten up a little bit, people are able to actually get in and see their family member, and they may see something where, "Hey, that doesn't look right to me," or, "Hey, man, Grandma Sue has really deteriorated over the past year," if they see that, is there anything that a family member can do? What kind of action can they take?

James M. Morgan:

A couple things. Let me start with the first thing that I tell my clients to do when they're getting back in the nursing homes and seeing mom or dad or grandma, and they don't want to do this, especially the men, but you need to look at them head to toe and assess them yourself. You need to look at their skin. You need to take their socks off and look at their heels and make sure they don't have any redness or bed sores on their heels, and, frankly, the number one place to get bed sores is the coccyx area, right above the butt. Listen, you don't want to go in there and visit mom for the first time in a year and go taking her clothes off and looking at her coccyx area, but if you don't do that, you're not going to know what's there, because most of the time they're not telling you that mom or dad's getting a bed sore.

James M. Morgan:

If, at all possible, I tell them, assess mom or dad or grandma head to toe, especially their skin, because you don't know what kind of bed sores they may have gotten during this COVID lockdown, and by the way, that's important even when there isn't COVID. I can tell you a case in particular where a lady said, "I noticed, every time I went to visit my husband, that they weren't changing his socks and they always told me they would change him, and I'd come back and he always had the same socks on, so finally I changed it," and she pulled off the sock and half of his heel came off with the sock, because nobody ever changed his sock and nobody ever knew he had a horrible bed sore on his heel, so even in normal times, you need to assess the resident's skin.

James M. Morgan:

That's number one. Number two, kind of to answer your question a little more directly, if you notice there's some weight loss, mom doesn't look so good, you need to ask questions and you need to ask questions not just of the caregiver who's coming in, because a lot of times that's a CNA and they don't have a lot of answers. You need to go to the head nurse or the director of nurses or the administrator and say, "Hey, look, when I saw mom or dad 12 months ago, I think they weighed significantly more than they do now. Will you show me their weights from last year and how that's decreased over time?" Because, they should be weighing them on a regular basis, especially if they're losing weight, and by the way, if they lose a certain percentage of weight in a certain amount of time, they're required to report that to the state.

James M. Morgan:

Ask questions and ask questions of the higher ups, not just the CNAs who are providing the hands on care.

Jonathan Rosenfeld:

Jim, we were talking a little bit about situations where a family member may see their loved one with a situation where it may not be an acute injury. They may not have that broken bone and they may have gone to the staff at the nursing home, they may have had a meeting with them, but they still don't feel like they're really making any headway in terms of remedying the situation. In that context, what, if anything, would you suggest that they do to help their family member and ensure that this doesn't manifest into something more severe or really a fatal injury?

James M. Morgan:

Before I answer that, I'm going to tell you what I tell all of my clients, which is, take notes and take detailed notes. Every time you make a complaint or you ask somebody to do something at the nursing home, write down the date you asked them, who you asked, and what you asked them, so that you have a record of it, especially if you're going to make a complaint to the state or somebody else that I'm going to mention, or if you come to a lawyer, ultimately, the more information you have, the better, so take detailed notes during the whole residency. You may not think it's important at the time, because there hasn't been an injury, but there is an injury, you're really going to want to go back and look at those notes, especially your lawyer's going to want to go back and look at those notes.

James M. Morgan:

Now, to answer your question, if a care plan meeting doesn't work, your complaints to the charge nurse, the director of nursing, the administrator, none of that works, you're being met with silence, basically, at least in California, every nursing home is required to post the name of an ombudsman and the phone number and that ombudsman is supposed to be the liaison between the family and the nursing home when the family has a complaint about the resident care. That's the next step.

James M. Morgan:

If the ombudsman is of no help, you can make a complaint to the state. For nursing homes in the state of California, you would call the Department of Public Health and you would ask them to do a complaint investigation, and you'd give them very specifically what your complaint is and they're supposed to go into the facility within 10 days unannounced and do an investigation specifically on your complaint. By the way, for an assisted living facility in California, it's the Department of Social Services, so, assisted living facilities, the Department of Social Services is who will do the complaint investigation.

James M. Morgan:

Nursing homes, it's the Department of Public Health who will do a complaint investigation, but let me say this. A lot of times people have called us before they've called the state and asked for a complaint investigation. A lot of times I will tell them, "Don't do that," because I don't want them to get an unsubstantiated result from the state and then I have to overcome that if there's ultimately going to be a case, so I will either tell them, "I don't want you to make a complain to the state yet," or I may help them draft the complaint to the state because they may not necessarily know how to articulate what they want investigated.

James M. Morgan:

If they call us first, I'll give them advice on making the complaint to the state, but if they don't want to call a lawyer and they just want to handle it themselves, then they absolutely can call the state and ask for a complaint investigation.

Jonathan Rosenfeld:

In Illinois where I'm located, you can make a complaint to the state anonymously and you don't have to necessarily give them all your information. I'm not sure if that's how things work in California, but a lot of times families feel much more comfortable making that complaint anonymously so they're not necessarily put on the spot.

James M. Morgan:

Yes, and you can do that. The only problem with that, and I don't want to say it's a problem, but the catch with that is you may not know what happens with that complaint. You may not know what the state did or what they found. If you give them your information, then you're going to get the results. You're going to know what they did and what they found, but you absolutely can make an anonymous complaint to the state.

Jonathan Rosenfeld:

Assuming that the family makes a report to the state and the state goes in and they do their investigation, they do make a finding ... We're going to get a little technical, here. That finding may not necessarily be admissible in a civil case, but that could be helpful in terms of giving you some direction in terms of prosecuting the case, correct?

James M. Morgan:

That's right. One reason I tell them sometimes not to make a complaint to the state until I look into the case further or I get the records and look at it, is because if the state comes back and says, "Well, we investigated your complaint but we did not substantiate your complaint," that, likewise, might be harmful to a possible case, but a lot of times the state will do a good job investigating and sometimes, if somebody calls us and asks, "Do I have a case?" and I'm kind of on the fence, it's borderline, I'll tell them, "You know what? Let me help you write a complaint to the state. Let's let the state go in there and investigate, because they can do it a lot faster than an attorney can, because they can pop in unannounced and talk to people and look at records," and I'll say, "Let's let the state go in there and investigate this complaint, and if they substantiate what you're telling me, then, yeah, we might have a case, here, or, likewise, if they don't substantiate what you're telling me, maybe there's not a case, here." It can be very hard.

Jonathan Rosenfeld:

No, I think people really need to take advantage of a lot of these services out there. People love to bad mouth when people aren't doing things that they necessarily should be doing, but the truth is is that there is an awful lot of support for people who are in nursing homes and for families. They just need to know where to get that and how to access that. I think this information's really, really helpful. Ultimately, if someone does have questions, I think contacting an attorney such as yourself to get some direction, make some contact, would be great. You have a tremendous amount of experience. You know who all these players are, all the resources are, so if anyone in California or any of the other states where you practice, has questions, I'm going to put your contact information in our show notes, but thank you very much for your time today, and I look forward to talking with you again in the future.

James M. Morgan:

All right. Thanks, Jonathan. I appreciate what you're doing.

Jonathan Rosenfeld:

Thank you.In this episode Jonathan Rosenfeld chats with James M. Morgan an Attorney at Lanzone Morgan LLP. Here, they discuss nursing home abuse and how to handle it from a legal perspective.

They discuss into 4 key issues related to nursing home abuse and litigation:

1) What is Nursing Home Abuse?

2) How do You Report Nursing Home Abuse (Who Do You Report Nursing Home Abuse To)?

3) What does an investigation by state agencies do and how does it work?

4) At what point should the family of a resident consider a civil lawsuit against a nursing home?

Read the Transcript

Download the PDF

Jonathan Rosenfeld:

Hello, everybody. I am Jonathan Rosenfeld and today on the Personal Injury Podcast I have my friend and colleague, Jim Morgan. Jim is an attorney in California and he is a named partner at Lanzone & Morgan, and the bulk of Jim's practice is related to nursing home negligence and elder abuse. Today, I want to talk with Jim about one of the real emerging areas of litigation in the field of personal injury law, and really, this is specific to nursing home care, is nursing home abuse. Jim has been practicing in this area for many, many years, and when it comes to these types of cases, I feel very fortunate to have him with me today to really answer some questions that people and families really come to us continually related to their care of their family member.

Jonathan Rosenfeld:

First up, Jim, I really appreciate you joining me today.

James M. Morgan:

Yeah, thanks for having me.

Jonathan Rosenfeld:

Now, today, we're going to talk about something called nursing home abuse. Nursing home abuse seems to me like the most broad, general term ever. In the field of personal injury law, a lot of times we talk about a surgical error case. We talk about a car accident case. We talk about a truck accident case, but a nursing home abuse case seems like it's the most over, all encompassing term ever. I guess, to begin with, can you just, in your mind's eye, give us an idea of what that term means? What does nursing home abuse mean?

James M. Morgan:

Yeah, well, you're really right on that because all the other stuff you mentioned, those are event cases where there's a car accident and that's an event. Somebody does something to somebody else. That can be within the realm of elder abuse or nursing home abuse, because you can have physical abuse cases where a caregiver is hitting a patient or resident or choking them. We've had those cases, or a sexual assault on a resident, but believe it or not, most of the nursing home abuse cases are neglect cases, which is really a failure to do something, so it's not an event.

James M. Morgan:

It's not a CNA or a nurse or a care provider doing something to the resident physically. It's more what they're not doing for the resident. They're not giving them sufficient water so that they get dehydrated, or they're not turning them and repositioning them to prevent them from getting bed sores, or they're not providing enough supervision or assistance to go to the bathroom so that the resident ends up falling and fracturing their hip. When we say elder abuse or nursing home abuse, most of our clients and callers, they're really talking about neglect and failing to provide proper care to the resident as opposed to actually doing something for the resident.

Jonathan Rosenfeld:

Interesting. In most of these cases, it's really just a systemic breakdown, almost, when it comes to the care of these patients. I've seen these cases. I know you've worked on many, many of these cases, and it seems to me like a lot of these cases, like you mentioned, it's not an isolated episode or event, it's a systemic breakdown where there's maybe not enough staff available to care for these patients or maybe the staff is not trained sufficiently to care for these people. Is that the type of situation that you see?

James M. Morgan:

Absolutely, and in fact, you really hit the nail on the head. Well over 50% of our cases result from lack of staff or insufficient number of staff. It's not that the caregivers are necessarily bad people who are doing bad things. We get that, too, but it's really, they don't have enough time because they have so many patients, so one person can't feed or give a bath to 20 different residents on their shift or two meals and a bath to that many residents, so well over 50% of our cases are a result of just the facility not hiring enough staff to take care of the residents.

James M. Morgan:

Some of it's not necessarily not enough staff, but a lack of training of the staff, so the staff doesn't know how to prevent bed sores or to provide fall prevention or cautions, or they have no training on how you get somebody with Alzheimer's or dementia to eat their whole meal when they say, "Oh, I'm not hungry," or, "I don't want to eat." They don't know what to do. They take their tray away and they say, "They don't want to eat dinner." They really don't have the training, so I'd say the vast majority of our cases come down to either insufficient number of staff or insufficiently trained staff.

Jonathan Rosenfeld:

You mentioned a bunch of episodes involving cases that you see on a fairly regular basis, falls, pressure sores, medication errors, patients who may wander from a facility, patients who may become dehydrated. Now you're sort of going into a new phase, if you will, of COVID, where family members, a lot of times, they may not be able to see their family member for some time over the past year, but now, some of the restrictions in various areas of the country are starting to lighten up a little bit, people are able to actually get in and see their family member, and they may see something where, "Hey, that doesn't look right to me," or, "Hey, man, Grandma Sue has really deteriorated over the past year," if they see that, is there anything that a family member can do? What kind of action can they take?

James M. Morgan:

A couple things. Let me start with the first thing that I tell my clients to do when they're getting back in the nursing homes and seeing mom or dad or grandma, and they don't want to do this, especially the men, but you need to look at them head to toe and assess them yourself. You need to look at their skin. You need to take their socks off and look at their heels and make sure they don't have any redness or bed sores on their heels, and, frankly, the number one place to get bed sores is the coccyx area, right above the butt. Listen, you don't want to go in there and visit mom for the first time in a year and go taking her clothes off and looking at her coccyx area, but if you don't do that, you're not going to know what's there, because most of the time they're not telling you that mom or dad's getting a bed sore.

James M. Morgan:

If, at all possible, I tell them, assess mom or dad or grandma head to toe, especially their skin, because you don't know what kind of bed sores they may have gotten during this COVID lockdown, and by the way, that's important even when there isn't COVID. I can tell you a case in particular where a lady said, "I noticed, every time I went to visit my husband, that they weren't changing his socks and they always told me they would change him, and I'd come back and he always had the same socks on, so finally I changed it," and she pulled off the sock and half of his heel came off with the sock, because nobody ever changed his sock and nobody ever knew he had a horrible bed sore on his heel, so even in normal times, you need to assess the resident's skin.

James M. Morgan:

That's number one. Number two, kind of to answer your question a little more directly, if you notice there's some weight loss, mom doesn't look so good, you need to ask questions and you need to ask questions not just of the caregiver who's coming in, because a lot of times that's a CNA and they don't have a lot of answers. You need to go to the head nurse or the director of nurses or the administrator and say, "Hey, look, when I saw mom or dad 12 months ago, I think they weighed significantly more than they do now. Will you show me their weights from last year and how that's decreased over time?" Because, they should be weighing them on a regular basis, especially if they're losing weight, and by the way, if they lose a certain percentage of weight in a certain amount of time, they're required to report that to the state.

James M. Morgan:

Ask questions and ask questions of the higher ups, not just the CNAs who are providing the hands on care.

Jonathan Rosenfeld:

Jim, we were talking a little bit about situations where a family member may see their loved one with a situation where it may not be an acute injury. They may not have that broken bone and they may have gone to the staff at the nursing home, they may have had a meeting with them, but they still don't feel like they're really making any headway in terms of remedying the situation. In that context, what, if anything, would you suggest that they do to help their family member and ensure that this doesn't manifest into something more severe or really a fatal injury?

James M. Morgan:

Before I answer that, I'm going to tell you what I tell all of my clients, which is, take notes and take detailed notes. Every time you make a complaint or you ask somebody to do something at the nursing home, write down the date you asked them, who you asked, and what you asked them, so that you have a record of it, especially if you're going to make a complaint to the state or somebody else that I'm going to mention, or if you come to a lawyer, ultimately, the more information you have, the better, so take detailed notes during the whole residency. You may not think it's important at the time, because there hasn't been an injury, but there is an injury, you're really going to want to go back and look at those notes, especially your lawyer's going to want to go back and look at those notes.

James M. Morgan:

Now, to answer your question, if a care plan meeting doesn't work, your complaints to the charge nurse, the director of nursing, the administrator, none of that works, you're being met with silence, basically, at least in California, every nursing home is required to post the name of an ombudsman and the phone number and that ombudsman is supposed to be the liaison between the family and the nursing home when the family has a complaint about the resident care. That's the next step.

James M. Morgan:

If the ombudsman is of no help, you can make a complaint to the state. For nursing homes in the state of California, you would call the Department of Public Health and you would ask them to do a complaint investigation, and you'd give them very specifically what your complaint is and they're supposed to go into the facility within 10 days unannounced and do an investigation specifically on your complaint. By the way, for an assisted living facility in California, it's the Department of Social Services, so, assisted living facilities, the Department of Social Services is who will do the complaint investigation.

James M. Morgan:

Nursing homes, it's the Department of Public Health who will do a complaint investigation, but let me say this. A lot of times people have called us before they've called the state and asked for a complaint investigation. A lot of times I will tell them, "Don't do that," because I don't want them to get an unsubstantiated result from the state and then I have to overcome that if there's ultimately going to be a case, so I will either tell them, "I don't want you to make a complain to the state yet," or I may help them draft the complaint to the state because they may not necessarily know how to articulate what they want investigated.

James M. Morgan:

If they call us first, I'll give them advice on making the complaint to the state, but if they don't want to call a lawyer and they just want to handle it themselves, then they absolutely can call the state and ask for a complaint investigation.

Jonathan Rosenfeld:

In Illinois where I'm located, you can make a complaint to the state anonymously and you don't have to necessarily give them all your information. I'm not sure if that's how things work in California, but a lot of times families feel much more comfortable making that complaint anonymously so they're not necessarily put on the spot.

James M. Morgan:

Yes, and you can do that. The only problem with that, and I don't want to say it's a problem, but the catch with that is you may not know what happens with that complaint. You may not know what the state did or what they found. If you give them your information, then you're going to get the results. You're going to know what they did and what they found, but you absolutely can make an anonymous complaint to the state.

Jonathan Rosenfeld:

Assuming that the family makes a report to the state and the state goes in and they do their investigation, they do make a finding ... We're going to get a little technical, here. That finding may not necessarily be admissible in a civil case, but that could be helpful in terms of giving you some direction in terms of prosecuting the case, correct?

James M. Morgan:

That's right. One reason I tell them sometimes not to make a complaint to the state until I look into the case further or I get the records and look at it, is because if the state comes back and says, "Well, we investigated your complaint but we did not substantiate your complaint," that, likewise, might be harmful to a possible case, but a lot of times the state will do a good job investigating and sometimes, if somebody calls us and asks, "Do I have a case?" and I'm kind of on the fence, it's borderline, I'll tell them, "You know what? Let me help you write a complaint to the state. Let's let the state go in there and investigate, because they can do it a lot faster than an attorney can, because they can pop in unannounced and talk to people and look at records," and I'll say, "Let's let the state go in there and investigate this complaint, and if they substantiate what you're telling me, then, yeah, we might have a case, here, or, likewise, if they don't substantiate what you're telling me, maybe there's not a case, here." It can be very hard.

Jonathan Rosenfeld:

No, I think people really need to take advantage of a lot of these services out there. People love to bad mouth when people aren't doing things that they necessarily should be doing, but the truth is is that there is an awful lot of support for people who are in nursing homes and for families. They just need to know where to get that and how to access that. I think this information's really, really helpful. Ultimately, if someone does have questions, I think contacting an attorney such as yourself to get some direction, make some contact, would be great. You have a tremendous amount of experience. You know who all these players are, all the resources are, so if anyone in California or any of the other states where you practice, has questions, I'm going to put your contact information in our show notes, but thank you very much for your time today, and I look forward to talking with you again in the future.

James M. Morgan:

All right. Thanks, Jonathan. I appreciate what you're doing.

Jonathan Rosenfeld:

Thank you.