Frequently Asked Questions
Below are some initial questions many clients have when they first contact Williamson & Lavecchia, L.C.. The questions below can address many initial concerns you may have. If you don't find the answers here, you may contact us for answers to more complex questions or questions specific to your case. The initial consultation is free.
Malnutrition and Dehydration
Q: Is it possible to have a normal weight and yet be malnourished?
Q: Is all weight loss due to malnutrition?
Q: How can family members curb malnutrition and dehydration in nursing homes?
Q: What can I do if a loved one dies or is seriously injured due to malnutrition and dehydration?
Q: How serious is the problem of malnutrition and dehydration in nursing homes?
Q: Is malnutrition and dehydration preventable?
Q: How are malnutrition and dehydration diagnosed?
Q: What are some of the signs that a nursing home patient is malnourished or dehydrated?
Pressure Sores
Q: What are pressure sores?
Q: How common are pressure sores in nursing homes?
Q: What are the stages of bed sores or pressure sores?
Q: Are pressure ulcers unpreventable?
Nursing Home Abuse and Neglect
Q: Are there caps on the amount that can be recovered against a nursing home?
Q: Can nursing homes and assisted living facilities be held liable for punitive damages?
Q: What is the statute of limitations (time limit) for filing suit against an adult home or a nursing home?
Adult Homes
Q: Can I file a lawsuit on behalf of a family member who was injured at an adult home?
Q: Is an adult home legally responsible for criminal acts of its employees against its residents?
Q: What rights do residents have in an adult home?
Q: Are direct care workers in assisted living facilities required to be licensed?
Q: How can I learn if an assisted living facility has been cited by the Virginia Department of Social Services for providing poor care, neglect or abuse?
Q: How common is elder abuse in adult homes?
General
Q: What should I look for when selecting an attorney to represent a loved one abused or neglected at an adult home?
Q: Is there a cap on damages that may be collected against adult homes?
Elder Abuse
Q: How common is elder abuse in nursing homes?
General
Q: Who regulates adult homes?
Q: What is the difference between an adult home and a nursing home?
Q: Should adult homes and nursing homes be restraining its residents?
Q: How can I select the right nursing home?
Q: What questions should I ask when visiting a nursing home or adult home?
Q: Are nursing homes required to have written policies and procedures and do I have a right to review them?
Q: Who regulates nursing homes?
Malnutrition and Dehydration
Q: Is it possible to have a normal weight and yet be malnourished?
A: Yes. A patient may have sufficient caloric intake, yet the patient may not be receiving enough vitamins and nutrients. For example, patients with pressure sores need additional protein, vitamin C and zinc to heal the pressure sore.
Q: Is all weight loss due to malnutrition?
A: No. If a patient is overweight, the patient may need to be on a weight reduction diet. Care needs to be taken to ensure that the patient still receives sufficient vitamins and nutrients. Certain medical conditions like cancer and AIDS can also contribute to weight loss.
Q: How can family members curb malnutrition and dehydration in nursing homes?
A: Visit during meal times and speak up to head off problems. Watch the nurses and nursing assistants to see if they are giving each patient sufficient attention. Feeding a nursing home resident is often a slow process. If they are not giving each resident sufficient attention, let the director of nursing and the administrator know your concerns. Demand a care planning conference if your family member is not eating well or is showing signs of unplanned weight loss. If the nursing home refuses to address your concerns, contact the Department of Health or the local ombudsman. The nursing home is required to post those telephone numbers.
Q: What can I do if a loved one dies or is seriously injured due to malnutrition and dehydration?
A: In addition to filing a complaint with the Department of Health, you should consider contacting us or another lawyer experienced in nursing home litigation to discuss your legal options. Attorneys Carolyn Lavecchia and Josh Silverman are experienced at representing victims of nursing home abuse and neglect including malnutrition and dehydration. You are welcome to contact us.
Q: How serious is the problem of malnutrition and dehydration in nursing homes?
A: The numbers are disturbing: malnutrition and dehydration killed nearly 14,000 patients from 1999-2002.
Q: Is malnutrition and dehydration preventable?
A: In most cases malnutrition and dehydration are completely preventable. Nursing homes are required to assess patients for risk of malnutrition and dehydration and to develop a comprehensive care plan to prevent malnutrition and dehydration. The care plan should address the risk of malnutrition and dehydration and the steps that will be taken by the nursing home to prevent malnutrition and dehydration. For example, a resident may not be able to eat a full meal in one sitting so the care plan should provide for nutritious snacks to be offered throughout the day. If the resident has a swallowing disorder, speech therapy should be ordered. If the resident needs reminding to drink, the nursing assistants should be instructed to frequently prompt the resident to drink.
Q: How are malnutrition and dehydration diagnosed?
A: Nursing homes are required under federal regulations to regularly monitor their residents’ weight. If a patient is losing weight both the physician and dietician should be notified. The physician will most likely order lab results to assess the patient’s nutritional status.
Q: What are some of the signs that a nursing home patient is malnourished or dehydrated?
A: • Cracked lips
• Weight loss
• Clothes appear looser than usual
• False teeth do not fit or the patient has mouth sores
• Pressure sores take longer to heal
• Confusion (not due to a disease like Alzheimers)
• Skin breakdowns
• Eyes appear sunken
• Urinary tract infections
Pressure Sores
A: Pressure sores, also called bed sores or decubitus ulcers, are lesions caused by pressure that has damaged underlying tissue. In most cases, pressure sores are preventable when the patient receives proper care. Pressure sores are by far easier to prevent than to treat by ensuring that the patient is turned and moved regularly and receives proper nutrition. Patients in nursing homes are particularly susceptible to pressure sores and nursing homes must recognize the patient’s risk of developing pressure sores and take preventive measures. Pressure sores are often painful and without proper treatment they will become progressively worse risking exposure of the underlying tissue and bones. When pressure sores become infected they are often fatal. To learn more about a nursing home’s liability for negligently failing to prevent and/or treat pressure or bed sores please read the article entitled "Pressure Sores and the Law” authored by the attorneys at Williamson and Lavecchia, L.C. in our Library which was presented at the 1999 Mid-Atlantic Wound Care Conference.
Q: How common are pressure sores in nursing homes?
A: In one study, 23% of patients in nursing homes were found to suffer from pressure sores. While some pressure sores are not preventable, the vast majority of these painful and serious injuries can be prevented and treated through the development of a proper plan of care including turning the patient regularly, keeping the patient clean and dry, and providing for his or her nutritional needs.
Q: What are the stages of bed sores or pressure sores?
A: Depending on the severity of a bed sore it is assessed and staged on a scale of Stage 1 to Stage 4.
Stage I Pressure Ulcer:
A Stage I pressure sore appears as a reddened area of the skin. In persons with darker skin tones it may appear persistently red, blue or purplish.
Stage II Pressure Ulcer:
A Stage II pressure ulcer appears like a blister, abrasion or shallow crater. A patient with a Stage II pressure ulcer has lost a part of the thickness of the skin.
Stage III Pressure Ulcer:
A Stage III pressure ulcer appears as a deep crater. The crater may actually extend under the nearby tissue. This is called undermining. If a patient has a Stage III pressure ulcer there has been a full thickness skin loss and possible damage to the underlying tissue.
Stage IV Pressure Ulcer:
If a patient has a Stage IV pressure ulcer the ulcer is so deep that it has penetrated the full thickness of the skin. Most likely, there has been damage to the underlying muscle, bone, or supporting structures (e.g., tendon, joint, capsule).
Q: Are pressure ulcers unpreventable?
A: In most cases pressure ulcers are preventable with proper nursing care. By turning and repositioning patients, providing for their proper nutrition, and keeping the patient's skin clean and dry most pressure sores are preventable. In fact the Federal nursing home regulations state that a patient who is admitted to a nursing home should not develop a pressure sore unless it is unpreventable.
Kenneth Olshanky, M.D., a well respected plastic surgeon in Richmond, Virginia, writes that "[t]he incidence of pressure ulcers is related directly to the care given by the nursing staff."
He explains that health care providers must quit blaming the patients for developing pressures sores. "The sicker and more at risk the patient, the harder we must work to prevent ulcers. ... The time has come to be honest. A patient develops a pressure ulcer because, at some point, he or she had inadequate pressure relief." Advances in Wound Care 22 (2):90.
More recently, a study found that following recommended procedures can reduce pressure ulcers by 70%. Go to our library to learn more.
Nursing Home Abuse and Neglect
Q: Are there caps on the amount that can be recovered against a nursing home?
A: Nursing homes in Virginia are protected by Virginia's medical malpractice cap. The cap means that no matter how egregious the nursing homes abuse and neglect of its resident, the nursing home can not be held accountable for more than $1.85 million dollars. On July 1 of each year the cap will rise by $50,000 up to a maximum of $2,000,000.
The attorneys at Williamson & Lavecchia, LC believe that caps only serve to protect wrongdoers and deny victims fair compensation for their losses.
Q: Can nursing homes and assisted living facilities be held liable for punitive damages?
A: Both nursing homes and assisted living facilities can be held liable for punitive damages if their conduct is considered willful and wanton by showing a conscious disregard for the rights and safety of the resident. They are also called exemplary damages. Under Virginia law, no more than $350,000 can be awarded for punitive damages. Punitive damages are included in the general medical malpractice cap therefore you can not recover more than the medical malpractice cap.
Punitive damages serve to punish the nursing home or assisted living facility and to deter the abuse and neglect of other residents. They are separate damages from the pain and suffering of the resident, medical bills, and losses to the beneficiaries.
A: Generally, a lawsuit must be filed within two years of the resident’s injury or death. However there are exceptions to this rule. Under some circumstances the period may be lengthened if the resident is legally incompetent. If the facility is owned by a government agency there are specific requirements for filing a notice of claim and in some cases the notice of claim must be filed within 6 months of the resident’s injury or death. Therefore, it is important that you contact an attorney as soon as possible. Many attorneys will not accept a case if you are close to a deadline.
Adult Homes
Q: Can I file a lawsuit on behalf of a family member who was injured at an adult home?
A: If your family member who was injured is competent, the lawsuit will normally be filed in his or her own name. However, if you have a durable power of attorney or are the legally appointed guardian then in most cases you can file the lawsuit on his or her behalf. The attorneys at Williamson & Lavecchia, L.C. can assist you in preparing a guardianship petition when it is necessary to file a claim on behalf of an injured or abused person who is not legally competent.
For more information please contact the lawyers at Williamson & Lavecchia, L.C., 6800 Paragon Place, Suite 233; Richmond, Virginia 23230, by telephone at (804) 288-1661, by fax at (804) 282-1766, or by e-mail.
Q: Is an adult home legally responsible for criminal acts of its employees against its residents?
A: Tragically residents of adult homes have been victims of criminal acts including physical, emotional, and even sexual abuse by the employees of the adult home who are entrusted with their protection. To prevent dangerous persons from becoming employed at adult homes, they are required to conduct criminal background checks on all of their employees. This is especially important because many residents of adult homes are physically and mentally vulnerable to abuse.
If the adult home fails to conduct a criminal background check and a resident is victimized by an employee with a criminal record the facility may be legally liable. Additionally, if the adult home has reason to believe that its employees are dangerous and the facility does not take steps to protect its residents it may be liable. For added protection the adult home is also required to check at least two references for every employee.
The bottom line is that the adult home must make reasonable attempts to protect its vulnerable residents. If you believe a loved one has been victim of criminal abuse at an adult home, you are welcome to contact us to discuss the your legal rights.
Q: What rights do residents have in an adult home?
A: 1. Right to be encouraged and informed of appropriate means to exercise their rights as a resident and citizen.
2. Right to manage their own money.
3. Right to voice grievances and request changes in policies and services at the facility without risk of retaliation.
4. The right to have daily visitors in the facility and reasonable visits away from the adult home.
5. The right to have their personal affairs and records treated confidentially.
6. They can not be compelled to perform services for the adult home.
7. The right to be free from mental, emotional, physical, sexual and economic abuse and exploitation.
8. The right to be treated with dignity, courtesy and respect at the adult home.
Q: Are direct care workers in assisted living facilities required to be licensed?
A: Believe it or not there is no requirement that direct care workers have a license. Direct care workers must be 18 years old, capable of speaking and writing in English and pass a criminal background check. Unless they administer medications they do not need to have any license or certificate issued by the state.
A: Assisted living facilities are regulated by the Department of Social Services. They are subject to unannounced inspections. The inspection reports since 1993 are available on the Department of Social Services website.
Q: How common is elder abuse in adult homes?
A: In one survey 15% of the staff interviewed at adult homes reported witnessing abuse of the elderly. The abuse ranged from verbal abuse (yelling, cursing, threats, etc.) to punishing residents by withholding food, excess use of physical restraints, and placing difficult residents in isolation. (Testimony of Professor Catherine Hawes, PhD, "Elder Abuse in Long Term Care Facilities: What is known about prevalence, cause, and prevention," before the U.S. Senate Committee on Finance, June 18, 2002).
At Williamson & Lavecchia, L.C. we have represented victims of elder abuse and neglect including a resident who was denied heat and another resident who was improperly imprisoned in a locked unit.
General
A: It is important that your attorney has a working knowledge of the rules and regulations of adult homes. These rules set forth minimal standards and the adult home may be held liable for violating these standards. These standards include staff qualifications, quality of food, emergency procedures, social activities for the residents, and quality living conditions. Additionally, there are statutes and court rulings that may affect your rights. It is essential that your attorney be familiar with these laws and court rulings.
Adult homes are also required to comply with the local building codes. Unfortunately many facilities are in poor condition. In some cases, adult homes have ignored repeated citations for building code violations like failure to provide sufficient heat and ventilation, safe entrances, and secure windows. Your attorney should be familiar with these regulations and how they apply to adult homes.
Q: Is there a cap on damages that may be collected against adult homes?
A: The Virginia Supreme Court held in the decision of Commercial Distributors v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990) that assisted living facilities are not subject to Virginia’s medical malpractice cap. Therefore, under current interpretation of the law there is no cap on compensatory damages.
Elder Abuse
Q: How common is elder abuse in nursing homes?
A: One Congressional study found that 1 out of every 3 nursing homes has been cited for abuse including injuries, sexual abuse and death.
Congressional investigators further found that one in five nursing homes failed to report abuse. Even worse the investigators found that in 256 nursing homes the abuse was so serious it placed patients' lives at risk.
Source: CBS News: "One in Three Nursing Homes Cited For Abuse," July 20, 2001.
General
A: Adult homes (assisted living facilities) are regulated by the Virginia Department of Social Services. Unlike nursing homes, adult homes are not subject to strict federal regulations. To protect against elder abuse and neglect, the Virginia Department of Social Services conducts random inspections of assisted living facilities. However, in many cases abuse and neglect goes unreported and government attention to these adult homes is widely scattered.
Attorneys investigating cases of abuse and neglect at adult homes must have a working knowledge of the regulations of the Virginia Department of Social Services. Facilities that violate the regulations may be liable for injuries or death.
Q: What is the difference between an adult home and a nursing home?
A: An adult home is by law a facility intended to provide minimal to moderate assistance with daily activities like bathing, dressing, and use of a bathroom. The adult home may provide medication if there are qualified persons on staff. They commonly provide both long term and short term (respite) care. Adult homes are regulated by the Virginia Department of Social Services. Additionally they must comply with the local building codes. The building inspectors office may conduct inspections of the facility. Adult homes are generally funded by grants from the local government or through private funds.
A nursing home provides healthcare to its patients. Nursing homes are subject to much stricter federal and state regulations and must be staffed with nurses. The Virginia Department of Health is responsible for ensuring that nursing homes comply with these regulations. They are subject to both announced and unannounced inspections, however, the inspectors are not able to catch all violations of health and safety regulations and unfortunately many cases of elder abuse and neglect go unreported.
Q: Should adult homes and nursing homes be restraining its residents?
A: It is illegal for certain adult homes to use physical or chemical restraints to control residents except in emergency situations. Restraints are extremely dangerous to residents. In addition to severe psychological effects of restraints, the use of restraints has a high incidence of severe injuries and even death.
The Federal nursing home regulations specifically state that "[t]he resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms." 42 C.F.R. Section 483.13.
The attorneys at Williamson & Lavecchia, L.C. have successfully recovered damages against nursing homes for improperly restraining and abusing residents.
Q: How can I select the right nursing home?
A: Selecting a nursing home is never easy. Fortunately, new information about nursing homes recently has become available on the Internet. Medicare provides a useful 59 page guide for choosing a nursing home that can be viewed online.
Also, Medicare now provides summaries of reports on most nursing homes and a detailed checklist for rating nursing homes.
In Virginia, you can contact the Center for Quality Healthcare and ask for copies of surveys and copies of prior complaints made against the nursing home. The Center for Quality Healthcare may charge a modest fee for copying. Under the Virginia Freedom of Information Act (FOIA), they must provide these documents within five business days. Send your FOIA to the following address for information about complaints and inspections of specific nursing homes:
Linda Wilhelm
Va. Department of Health
Center for Quality Healthcare
3600 W. Broad Street, Suite 216
Richmond, VA 23230-4920
(800) 955-1819
In addition to the above suggestions, there are professional healthcare consults who can assist you in locating an appropriate nursing home. They will charge a fee for their services.
Q: What questions should I ask when visiting a nursing home or adult home?
A: What is the staff to resident ratio on each shift?
Does the facility provide the religious, cultural and social programs that will interest the resident?
What fees does the facility charge? Upon request the facility should provide a written fee schedule.
What type of security does the adult home or nursing home have in place to keep dangerous people out and to keep residents from wandering away?
Does the facility have arrangements with local hospitals and doctors for emergencies?
For nursing homes, is it accredited by the Joint Commission on the Accreditation of Healthcare Organizations?
Medicare provides a checklist with these and other important questions that you should consider in selecting a nursing home.
Once you have selected a facility, you should remain diligent. Visit your loved ones often. Talk to the staff. Let them know that you are concerned and you want to remain informed your loved one's care. You should not be shy about thanking them for providing quality care and likewise complaining about anything less than quality care. Try to visit the facility at different times of the day to check up on the care your loved one receives during different nursing shifts.
A: Absolutely. All licensed nursing homes are required to have written policies and procedures for providing care to their residents. Their staff is required to be familiar with the policies and procedures and to comply with them. Unfortunately, many nursing homes fail to do so and the results can be tragic. You have a right to review them and you should ask for a copy of the procedures. Do not tolerate care below those levels.
Frequently after an injury occurs the nursing home denies that they are liable for providing care that does not even comply with its own policies and procedures. The attorneys at Williamson & Lavecchia, L.C. have successfully compelled nursing homes to provide this information in litigation.
Q: Who regulates nursing homes?
A: Nursing homes are regulated by both the Federal government through the Code of Federal Regulations and the Virginia Department of Health. In the 1980s, the Federal government imposed detailed regulations governing the operation of nursing homes that receive either Medicaid or Medicare funding. Virginia subsequently enacted regulations that largely follow the Federal regulations. Inspections are typically performed by the Virginia Department of Health. Based on the inspection reports the Federal government may imposed penalties, fines, and even deny funding for a nursing home.
As part of our investigation of a nursing home, we routine obtain copies of prior inspections and complaints against the nursing home.