Florida Nursing Home Lawyer Blog

The state-funded agency charged with keeping tabs on Florida nursing home abuse claims has become a lightning rod for controversy.

It’s top ombudsman, Jim Crotchet, was abruptly placed on paid leave, ordered to have zero contact with agency workers or volunteers and essentially confined to house arrest while the state investigates some mysterious alleged wrongdoing, the nature of which has yet to be disclosed.

You may recall that Crotchet was the controversial replacement pick of Gov. Rick Scott, who ousted former ombudsman Brian Lee after Lee requested information on funding sources from thousands of nursing home providers across the state. That request didn’t sit well with the powerful lobbyist arm of the nursing home industry, who pushed hard for Lee’s ouster. They got it. Crotchet was seen as more industry-friendly, which of course raised numerous red flags for nursing home resident advocates.

Lee went on to found the non-profit elder care advocacy group Families for Better Care, and has an employment lawsuit still pending against the state.

A spokeswoman for the Florida Department of Elder Affairs, which oversees the ombudsman program, said the program “continues to thrive,” despite these issues. She said the biggest problem has been the negative press, which she said have reflected a “gross misrepresentation” of what’s really going on with the agency.

But while the agency may tap-dance around personnel issues, it’s not so easy to sidestep the sorry state in which many nursing home residents have been discovered in recent months.

For example, at a for-profit elder care facility in Orlando, an elderly patient was found to have sexually molested at least four female patients on numerous occasions. He even reportedly groped a female employee. He was also accused of repeatedly urinating in the hallway. However, the facility was alleged to have done little to stop him.

Then in Melbourne, a nursing home had reportedly taken a number of residents on an outing when a female patient fell from her wheelchair, suffering a head wound. However, rather than call 911, the staffer did nothing. Over the course of two hours, the woman developed a softball-sized bump on her head. Two hours later, when she was transported to the hospital, she required emergency surgery to address the swelling. She did not survive.

And in June, an elder care facility in Winter Haven was fined some $17,000 by the state after employees there acted to resuscitate two patients – one of those a 102-year-old – even though they had signed legal documents expressly refusing intubation for purposes of extending their lives. Such actions violate the rights of residents to have a death that is both peaceful and dignified.

Our Delray Beach nursing home abuse lawyers wish we could say that such incidents are isolated. However, nearly one in five nursing homes here in Florida is listed on the state watch list for doling out poor care.

At this time, when we need the ombudsman program more than ever, we are finding it is crumbling. Established by the federal Older Americans Act, its purpose is to serve as a safety net for residents of nursing homes, who are vulnerable and often lack the ability to advocate for themselves.
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State workers were found responsible for egregious and sometimes violent abuses of their position.

One bit a patient on the ear. Another threatened a co-worker with a text that contained the words, “gut you like a fish.” Another left a patient unclothed, bleeding from a head injury and soaked in feces on the bathroom floor. And still another was found to have struck a resident in the head, knocked him out of his chair and squirted water in his face.

Our Lake Worth nursing home abuse attorneys understand that each of these workers were responsible for caring for individuals who suffer mental or developmental disabilities. All were found in internal investigations to have been wrong. All of them, according to The New York Times, kept their jobs.
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The woman in Room 101 was dying.

That might not have been so unique for someone residing in an assisted-living facility, designed for those who require help with day-to-day tasks, but not necessarily around-the-clock medical care.

But it was why she was dying that would later become an issue. As our Vero Beach nursing home abuse lawyers understand, the retired teacher’s body was being ravaged by bed sores, also known as pressure ulcers. In all, she had five. One at the base of her spine had become so deep, so infected and gangrenous, that required surgery.

As journalism non-profit ProPublica would later report, a wound care expert opinioned that she was battling numerous strains of bacteria from the gaping wounds in her flesh, and that it had likely been several months since she had been treated.

She was also suffering from severe malnutrition.

In and of itself, this standard of care is appalling. What is even more troubling is that in California, where the patient in Room 101 resided, the law states that someone with pressure sores be moved to a facility more equipped to handle that intensive level of care, either a hospital or 24-hour nursing home facility.

The patient in Room 101 died. The center responsible for her care was fined for failing to move her to a more appropriate facility.

But why wouldn’t they have done so in the first place?

In a word: money.

In this case, the assisted living facility had been paid some $12,000 to cover the patient’s room, meals and care for just three months. Aides at the facility would later reveal that they clandestinely rubbed cream into the wounds to help ease the pain. This was despite the fact that they were not medically trained or authorized to do so. However, they felt it was the least they could do when the hire-ups had directives to retain patients as long as possible – regardless of the patient’s condition.

An internal memo discovered from 2008 at the facility discussed the “back door” priority. That is, they wanted paying customers who moved in to never move out, or in other words, “go out the back door.” One directive even indicated in all-caps: “KEEP THE BACK DOOR SHUT!”

Of course, those who might exit out that “back door” would be those who required an increased level of care than what the facility could provide. This bolsters the occupancy numbers and ultimately the pocketbooks of the facility, but at the cost of jeopardizing the health and well-being of the patient.

ProPublica recently teamed up with reporters from PBS Frontline to sift through thousands of pages of regulatory documents from this same company in seven states, including Florida. What they found was that in the last six years, the company has been cited in every state for for holding on to residents who should have been relocated to receive a higher level of care.
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The question of whether elderly patients with dementia may be able to engage in consensual sex is an uncomfortable one for the children and grandchildren of those in question.

However, our Hollywood nursing home abuse lawyers view it as an important one to address in order to ensure their loved one’s safety and well-being.

On the one hand, we want our loved one’s final years to happy. Although it might be difficult notion at least initially – especially families of dementia patients who are still married – many come to the conclusion that this might mean offering a blessing to a romantic relationship with another patient.

On the other hand, such relationships are fraught with questions that are not only ethical and moral, but also regarding safety. The biggest underlying question is: To what extent can a dementia patient offer consent to a sexual relationship? We would never want to expose our loved ones to a situation in which they may in any way be coerced into a sexual relationship. But where do we draw the line?

There is no surefire formula, but there seems to be consensus that there is indeed a point at which a patient is too far gone mentally to reasonably offer consent. Determining what that point is, though, is not easy.

A recent series by Bloomberg News Reporter Bryan Gruley explored this topic in-depth.

The series opens with a call received by an Iowa nursing home director on Christmas Day four years ago. Staffers had discovered that a 78-year-old man and an 87-year-old woman had just engaged in intercourse. The man, a retired college professor, was divorced. The woman, a former secretary, was still married. Both had dementia.

Both the director and a top administrator at the center were fired. The assertion from the woman’s family members was that she was not in a position mentally to offer consent and that the facility failed to protect her from the man’s sexual advances.

We know that the craving for human touch doesn’t vanish once we reach a certain age. A New England Journal of Medicine Study published in 2007 found that more than half of respondents between the ages of 65 and 74 reported continuing to engage in sexual contact, as did nearly a third of those between the ages of 75 and 85.

It’s possible we could see those percentages grow as baby boomers, those who lived in a sexually-freer generation, continue to age.

This might be an uncomfortable fact for younger folks, but it’s important to understanding the greater issue.

In the Iowa case, the fact that a sexual relationship unfurled wasn’t entirely surprising. The two had reportedly “gravitated” toward one another, holding hands and spending long hours sitting close and talking. Staffers said the woman appeared “calmed” by the man’s presence. However, she referred to the man by her husband’s name, calling into question her mental capacity to consent. There was little question that the woman’s dementia was more severe than the man’s, but the question was whether that meant that the two couldn’t engage in a consensual relationship.

Initially, when nursing home staffers learned that the two were becoming friendly, they tried to dissuade the man from spending time with the woman, concerned about liability. Although there wasn’t any indication of force in these encounters, administrators initiated 15-minute checks on him to ensure he wasn’t being “overly-friendly” with the woman. However, a lack of staff meant that those checks couldn’t continue.

While sexual encounters between staffers and patients is expressly against the law, there is no law barring sex between residents. However, sex without consent is rape. This would be something that administrators would have to report to state regulators. But what if it appears consensual?

Many facilities believe that, generally, residents should have the right to engage in activities they would normally be able to engage in outside the facility, so long as it doesn’t infringe upon the safety or rights of others or themselves.

It’s important that nursing home administrators are protecting patients at all junctures. That means that such relationships must be closely monitored, and facilities must be openly and regularly engaging family members in the discussion is well.
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