Nursing Home Falls and Neglect: A Family's Options in Ohio

Published August 14, 2015 · Injury Law Basics

The call usually comes from the facility. Your mother "was found on the floor." Your father "has a wound on his heel that we're watching." Your aunt was taken to the hospital "a little dehydrated." Each of these calls can be an isolated event. Each can also be the first visible sign that a nursing home does not have enough staff to do what it promised when you signed the admission papers. This post explains how to tell the difference, what Ohio law gives you to work with, and when a family should stop accepting explanations and start demanding records.

The warning signs, and why they point to staffing

Most nursing-home injuries are not caused by cruelty. They are caused by too few aides caring for too many residents who cannot move, eat, or go to the bathroom without help. Four conditions show up again and again:

• Falls. A resident whose care plan calls for two-person assistance is moved by one aide in a hurry, or is left alone on the toilet, or is not answered when she presses the call light. Falls cause hip fractures, head injuries, and a downward spiral in people who were already frail.
• Pressure sores (bedsores). A resident who cannot turn herself must be repositioned on a schedule, usually every two hours, and kept clean and dry. Skin breakdown over the tailbone, hips, and heels is almost always a sign that this did not happen. Advanced sores expose muscle and bone and become infected.
• Dehydration and malnutrition. Residents who need help eating and drinking lose weight and become dehydrated when meals are rushed or trays are collected untouched. Dehydration leads to urinary infections, confusion, and hospitalizations.
• Medication errors. Missed doses, double doses, and the wrong drug entirely, often traced to overworked nurses and poor handoffs between shifts.

One fall can happen anywhere. A pattern of falls, a Stage III or Stage IV pressure sore, or a hospitalization for dehydration in a resident who was supposed to receive help with meals are different. They are evidence that the care plan was not followed.

Ohio's Residents' Bill of Rights

Ohio gives nursing-home residents a specific set of legal rights in R.C. 3721.13. Among them are the right to a safe and clean living environment; the right to be free from physical, verbal, mental, and emotional abuse; the right, upon admission and thereafter, to adequate and appropriate medical treatment and nursing care; and the right to have all reasonable requests and inquiries responded to promptly. The statute also limits the use of physical or chemical restraints to what is necessary to protect the resident, with a physician's authorization, and says restraints may never be used for punishment, incentive, or convenience.

Two features of the statute matter for families. First, a resident's "sponsor," typically a spouse or adult child, may act on the resident's behalf to make sure these rights are honored. Second, the law says any attempted waiver of these rights is void. No admission packet can sign them away.

The civil remedy

A bill of rights without a remedy would be a poster on a wall. Ohio's is enforceable. Under R.C. 3721.17, a resident whose rights are violated has a cause of action against the person or facility committing the violation. If the resident cannot bring the claim, a guardian, the estate, or specified family members may bring it. The plaintiff may recover compensatory damages by proving that the violation resulted from a negligent act or omission and that it proximately caused the resident's injury, death, or loss. Where compensatory damages are awarded, punitive damages are available under Ohio's general punitive-damages statute, R.C. 2315.21, which requires proof of malice, meaning a conscious disregard for the rights and safety of others that has a great probability of causing substantial harm.

In practice, a nursing-home case is brought as a combination of claims: the statutory claim under R.C. 3721.17, ordinary negligence, and, when a resident has died, a wrongful-death claim on behalf of the family. The injuries that support these claims are proven with the facility's own records: the care plan that said two-person assist, the repositioning log with missing entries, the weight chart, the wound-care notes, and the staffing sheets that show how many aides were on the floor.

Filing a complaint and getting the inspection history

Separate from any lawsuit, R.C. 3721.17 allows any person who believes a resident's rights have been violated to report it directly to the Ohio Department of Health, which is required to investigate complaints alleging substantially inadequate care or unsafe conditions. The statute protects the person making the report from civil liability for making it, and it prohibits the facility from retaliating against anyone who files a complaint, testifies, or brings a lawsuit.

Families should also know that every Ohio nursing home is inspected regularly, and the inspection reports, with their citations for deficiencies, are public. You can request them from the Department of Health or review summaries through Medicare's Nursing Home Compare website. A facility with repeat citations for falls, pressure sores, or insufficient staffing has been told, in writing, about the very problem that hurt your family member. That history is powerful evidence.

What to document, starting now

If you suspect neglect, do these things in the first week:

1. Photograph injuries (with the resident's consent or as her representative) and date the photos. Pressure sores in particular change quickly, and photos taken before a hospital transfer may be the only record of how bad things were at the facility.
2. Request the complete chart in writing. Residents have a statutory right of access to their medical records, and the sponsor can request them on the resident's behalf. Ask for the care plan, nursing notes, incident reports, repositioning and intake logs, and medication administration records.
3. Write down what you were told and by whom, with dates. Explanations tend to change once a lawyer is involved.
4. Keep a visit log. Note call lights going unanswered, the smell of urine, residents left in wheelchairs for hours, missing aides at mealtimes. These observations corroborate the records.
5. Get the hospital records too. The emergency room is often the first place the true condition of a wound or fracture is documented honestly.

The arbitration clause in the admission packet

Many Ohio nursing homes include an arbitration agreement in the stack of admission documents, which, if enforced, moves a family's claims out of the courthouse and in front of a private arbitrator. These clauses are not always enforceable. Two years ago our own Second District Court of Appeals refused to enforce one against a Dayton-area family, as we explained in our post on the Westerfield decision. Whether an arbitration clause will bind your family depends on who signed it, what authority they had, and how it was presented. Bring the entire admission packet to your lawyer; do not assume the clause ends the matter.

Deadlines

Injury claims in Ohio generally carry a two-year deadline, and wrongful-death claims must be filed within two years of the death. The practical deadline is shorter: records get thinner, staff turn over, and witnesses disappear.

What this means for you

A single fall is not necessarily negligence. A fall by a resident whose chart required a bed alarm or two-person assistance, followed by an undiagnosed fracture or an infected sore, very likely is. Ohio law gives your family the right to the records, the right to complain to the state without retaliation, and the right to sue for compensatory and, in cases of conscious disregard, punitive damages. Use those rights early, while the evidence still exists.