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Corson & Johnson

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Wrongful Death: Assisted Living Facility Negligence

 

Nursing home negligence is a huge concern because of the impact it has on families. In one such case, we represented a local family whose 94-year-old mother resided in an assisted living facility. She had developed post-polio syndrome as a young adult but her condition did not prevent her from raising two children as a single mother and financially supporting herself and her family. She was well-regarded in the community and appreciated for her grace and kindness. As she got older, her weakened limbs made her more at risk for falls and fall injuries, so she moved into an assisted living facility for her comfort and safety. Even without post-polio syndrome in the equation, most fractures in older adults are caused by falls, which are the leading cause of accidental death in people over the age of 65, according to the United States Center for Disease Control and Prevention. As people age, the risk substantially increases: the rate of fall injuries for adults 85 and older is almost four times that for adults 65 to 74.

The assisted living facility knew that she was at a high risk of falls and given its line of business, should have understood the risks of falling for someone of her age. More specifically, the assisted living center had a written care plan for her that required to facility to provide assistance to her when transferring and toileting. One day, when facility staff began to transfer her, she began to fall. One of the aides had just returned from hernia surgery and was not able to hold her. The resident fell hard, thudding as she landed and breaking her femur. Facility staff claimed to the Oregon Department of Human Services (DHS) investigator that she was lowered gently to the ground, but the fall had been seen by an independent observer who saw how hard the fall was.

She did not recover her mobility after the fall but instead remained in bed, first in the hospital and then in a skilled nursing facility. She died two and a half months later. The case settled for a confidential sum.

 

Oregon Bill Aims to Stop Elder Abuse

 

The Elder Abuse Bill (House Bill 4151) passed off the Oregon Senate floor last week by a 30-0 vote, and is on its way to Governor Kitzhaber for signature. The legislation is the product of the Elder Abuse Work Group, which included our firm’s Lara Johnson.

Elder abuse has traditionally been under-recognized and under-reported. There have been a number of steps taken in recent years to provide better protection to the elderly and other vulnerable people.

The Elder Abuse Work Group was given a broad mandate to look at a variety of issues, including the definition of “abuse.” The definition of abuse determines what mandatory reporters must report, what state investigators must investigate, and what conduct the State may punish with financial penalties. The Elder Abuse Work Group decided to strengthen the protection against sexual abuse and simplify the definition of neglect to provide better guidance to mandatory reporters and state investigators, and to provide more consistency with enforcement.1808_CJ_Blog-ElderAbuse
The legislation explicitly states that sexual contact between a resident of a care facility and an employee of the care facility is abuse and is not permitted. A resident or the resident’s family does not need to prove that sexual contact was non-consensual for the State to take action. This reflects the general thinking among the Elder Abuse Work Group members that such conduct was inappropriate under all circumstances.

“Neglect,” under the revised statute, means the “failure to provide basic care and services that are necessary to maintain the health or safety of an elderly person.” It is not necessary that the elderly person experience actual physical harm if the conduct itself is dangerous and may later result in actual harm to others. “Neglect” is not a failure to provide non-basic care. (One story making the rounds at the Capitol was of a care worker who, on one occasion, did not share cookies with a resident and wound up with an abuse allegation on her record. That’s not abuse.)

Another part of the new law is the implementation of a more systematic approach to the abuse registry. The Department of Human Services has been tasked with creating and updating a registry of all persons who work and seek work at facilities or as home health care workers. The idea is that this list would include all caregivers who have committed crimes that would disqualify them from working with the elderly, or who have previously been found to have committed abuse by the State. The DHS is to  develop rules establishing what a facility must report to DHS, what form such reporting must take, the procedure for administering the registry, and guidelines for release of information from the registry.

The new legislation addresses some, but not all, of the issues considered by the Elder Abuse Task Force. Financial abuse of elderly people is a prevalent problem. Recent legislation gives law enforcement more authority to gather such records, but the definition of financial exploitation may need to be expanded to address modern financial crimes.

People who are developmentally disabled are not protected or covered by the new legislative changes. Their interests may be raised in the next few legislative sessions.

The unanimous passage of this Bill is a testament to the professionalism of  the Elder Abuse Work Group, which includes members with very different interests and backgrounds. We are proud of their efforts and look forward to additional measures to protect vulnerable Oregonians.

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