I have been practicing law in the area of elder abuse and neglect for the past 15 years. My firm is now devoted exclusively to this area. I am pleased to share practice tips in this quarterly column with NYNAELA members. Since 75% of the calls my firm receives involve bed sores suffered by nursing home residents, I thought bed sores would be a fitting first subject.
What exactly are bed sores?
Bed sores, also known as Pressure Ulcers or Decubitus Ulcers are areas of damaged skin caused by prolonged pressure to vulnerable parts of the body, such as the hips, buttock and heels. A bed sore may first appear as a reddened area of skin over a bony prominence, and can worsen to a deep wound involving the underlying tissue, muscle and bone.
Who is at greatest risk for bed sores?
Examples of residents who are at risk for developing bed sores:
– Residents confined to bed or chair for long periods of time.
– Incontinent residents.
– Dehydrated or malnourished residents.
– Residents with mobility problems.
– Residents on antipsychotic drugs.
Are bed sores a sign of neglect?
They are a likely sign of neglect. Medical experts advise that with appropriate care and equipment, bed sores are often easily preventable and completely treatable, if found early.
How can they be prevented?
Some examples of care used to prevent them are:
– Proper nutrition and hydration
– Changing wet or soiled diapers promptly
– Turning and positioning every two hours in bed
– Repositioning every hour, and limiting time out of bed, in recliner or chair
Some example of equipment used to prevent and heal them are:
– Pressure reducing mattresses
– Cushions for recliners or chairs
Should the development of bed sores be reported?
Yes, as with any case of suspected neglect or abuse, it should be reported to the facility and reported to:
NYS Department of Health
NYS Attorney General’s Office, Medicaid Fraud Control Unit
What legal recourse do nursing home residents have?
Nursing home residents can bring actions under Public Health Law Section 2801-d seeking compensation for
their injuries, if they have been deprived of a “right or benefit” created for the protection of nursing home residents by contract, or by federal or State statute, code or regulation. This is in addition to available negligence or medical malpractice actions.
Who has the burden of proof in a Section 2801-d lawsuit?
Once a resident develops bed sores, the burden is on the facility to prove they took all steps reasonably necessary to
prevent the bed sores.
Are there also regulations that address bed sores?
Yes, there are federal and State regulations, 42 CFR 483.25 (c) and 10 NYCRR 415.12 (c) (1). Generally, these regulations require that a resident entering a nursing home facility without bed sores and not develop any during their admission.
Further, if a resident enters a facility with bed sores, the facility must provide necessary treatment and services to heal the bed sores, prevent infection and prevent new sores from developing.
How are legal fees paid?
Legal fees are paid on a contingency fee basis, and the fees are deducted from the amount recovered at the end of a case.
Will a monetary recovery compromise a resident’s Medicaid coverage?
No. The amount of any damages recovered by a patient are exempt for purposes of determining initial
or continuing eligibility for Medicaid. PHL §2801-d (5)
You can download a PDF copy of the New York Chapter of the National Academy of Elder Law Attorneys here.