By Missouri Attorney David W. Terry

Transcription

1 By Missouri Attorney David W. Terry

2 Have you ever wanted to complain about the care your loved one is getting at a nursing home but didn t because you were concerned about staff members retaliating against you or your family member? If you have, you are not alone. It s sad that family members who have trusted a nursing home to provide quality care and a safe environment for their loved ones fear reprisals if they complain about the care being provided, but that is the reality many face. TYPES OF QUESTIONS ASKED. If you have a family member in a nursing home you have likely asked yourself some of these questions: WHY has my mother not been changed for several hours? HOW is one CNA going to safely move my dad when his care plan says two people are supposed to move him? WHERE are all the staff members? WHEN are you going to give Mom some water to drink? WHO was supposed to be supervising my wife when she fell? WHAT the heck is going on around here? Sound familiar? Perhaps you have faced each of those questions and dozens more. And yet, maybe you decided not to make any formal complaints because you were concerned that doing so would just make it worse. Here is the sad truth. Most nursing homes are understaffed and just do not have enough staff members to meet the needs of every resident. While there are some good people doing their best to provide quality care, in many cases they just can t keep up with the demand resulting in long delays in cleaning residents after an incontinent event, one CNA trying to move a resident even though two people are supposed to be involved, lack of supervision for residents who are at risk for falling, lack of adequate hydration and the list goes on. That s bad, but that is not the worst. In some cases (not all) nursing home companies train their staff members to view family members as adversaries. Staff members are to chart against family members who complain about the care their loved ones are receiving. Family members feel that hostility. It is palpable. It begins to feel like an us vs. them situation. And, this is where family members get the feeling that if they complain, their loved ones will pay the price. So what do you do? Do you just take it? Do you just allow your family member to suffer without seeking any changes at all? Absolutely not! They key is to learn the most effective way to complain. It may not solve the problems completely, but it is helpful to complain in the right way. 1

3 THE WRONG WAY TO COMPLAIN. Ever felt like this guy? If you have had a loved one in a nursing home I m sure you have. But, like everything else there is a right way and a wrong way to complain. The absolute wrong way to complain in a nursing home is to be belligerent, demeaning and rude. While this may be effective once or twice, in the long run it is a bad strategy. You will be labeled a troublemaker and they will definitely make sure your rude comments are prominently placed in the resident s chart. This will have ramifications at the nursing home, the hospital and even all the way to a court room in the event you have a legal case. If you want to effectively advocate for your loved one, don t engage in name calling, insults or rude remarks. THE RIGHT WAY TO COMPLAIN. Always be respectful and calm. That doesn t mean you have to be a pushover. You can be forceful while still being calm. You can even raise your voice and still be respectful. The key is to be firm, truthful and factual. Don t use absolutes (like always or never) when voicing complaints: You never turn and reposition my Mom and You always leave her in a wet diaper for hours! because they are probably not factually true. You will have enough to complain about without exaggerating, so avoid the temptation to do so. Be firm. Be truthful. Be calm. WHO SHOULD I COMPLAIN TO FIRST (AND SECOND, AND THIRD )? There is no right or wrong answer here and who you complain to may depend upon the type of complaint you have, but in general here are some suggestions on where to start the complaint process: 1. Start with the nursing home aides. If you have a complaint, start by discussing the situation with the nursing home aides (generally referred to as CNAs). It is possible that they did not know your parent was supposed to have two people assisting him or that your father needed help moving from a seated to standing position. The fact that they weren t told that information may not be their fault. It could be a failure at a higher level, a failure in training or the consequence of high turnover at nursing homes. It may be that if you ask them to take care of something for your family member, they will do it and the problem will be solved. If they don t know they answer or they are unwilling or unable to resolve the problem, talk with their supervisor. 2

4 2. If The CNA s Don t Resolve The Problem, Go To The Director Of Nursing. Every nursing home has a nurse who is in charge of all the nursing staff in the facility. This person is typically called a Director of Nursing or DON. If you are concerned about the nursing care your family member is getting and those concerns are not being addressed by the nursing staff, then you should make an appointment to meet with the Director of Nursing and address your complaint. Before the meeting, make a written list of your concerns with dates, times and the identity of those with whom you have previously discussed the problem. If your concern is about a specific individual or shift, then be sure and identify that in your meeting. For example, if you are concerned that CNA Judy is not getting assistance of another individual when assisting your mother in transfers from the bed to her wheelchair, then don t hesitate to identify Judy by name. Likewise, if it is the care your loved one is receiving on the night shift in general, then be specific with that information. 3. If The Director Of Nursing Doesn t Resolve Your Concerns, Talk With The Administrator. If after talking with the nurse aides, nurses and Director of Nursing your concerns have still not been resolved, make an appointment to meet with the Administrator to address the problem. 1. Don t Trust Them And Talk Only About Your Complaints. RECOMMENDATIONS FOR ALL FORMAL COMPLAINT MEETINGS AT A NURSING HOME Now this may seem like I m being overly dramatic or paranoid, but I ve seen too many nursing home records where family members are quoted as saying wonderful things about the facility when in reality family members have complained bitterly about the care their loved one has received. During a meeting you may be asked something like What are we doing right for your Mom? When you answer that question, you can be assured that the good things you have to say will be reflected in their records. For example, their charting may say, Family members were very complimentary about the care our facility is giving their Dad...especially with respect to care provided by the morning staff.. They often conveniently leave out your complaints. Why do they do this? They are trying to put you in a box if you are ever asked by an attorney if you were complimentary of the care they provided. Q: Isn t it true that you complimented the Administrator on how well the morning staff was caring for your father? A: Well yes, but.. See. They have set you up. They make you look like an opportunistic Johnny Come-lately because your complaints aren t written down. But the compliments are written in the chart. So, the bottom line here is this.in your meeting talk only about your complaints and nothing else. If they go fishing for compliments, don t give an answer. Instead, tell them that this meeting is about your concerns and nothing else. 3

5 2. Avoid Discrepancies In Complaint Meetings. Remember when you were a kid and you played a game where someone whispered a sentence to a person on one end of the room and each person in turn whispers it to the person next to them? By the time the message got to the other side of the room, it was almost always different from the original sentence. People hear and remember things differently, so it is always important to have as accurate a record as possible when meeting on something as important as the care of your family member. So, when you get into any formal meeting at a nursing home I recommend that you record the meeting (if you can) or take notes. A. Record The Meeting. At the beginning of the meeting and before beginning any recording, ask the Administrator and everyone else who is present at the meeting for their consent to record the meeting. If everyone consents, turn on your recorder and get their consent once again on the recording. If you don t get their consent on the record they will deny that they ever gave it. Have everyone in the meeting identify themselves and that they have given their consent to the meeting being recorded. If even one person refuses to give their consent, do not record the meeting. Always be willing to provide a copy of the recording to the meeting participants and always keep a copy of the recording in a safe place. Keep in mind.most of the time they will refuse to let you record the meeting. B. Take Thorough Notes. Even if you are recording the meeting (but especially if you aren t) take detailed notes. Identify all people who attend the meeting and what each of them have to say. Identify the issues discussed and that you have clearly identified your complaints and concerns. Make sure that you discuss and note any consensus as to the cause problem (i.e. there weren t enough staff members on the hall the day Mom fell) and what the nursing home is going to do to resolve the problem (i.e. facility will add staffing, make sure Mom is supervised, etc.). It is important that you document that they have acknowledged a problem and their plan to fix the problem. Write down just facts. You want these notes to be a very fair reflection of what was discussed without your opinions. 3. Get Notes Organized And Initialed. Once the meeting is complete make sure your notes are paginated in order and ask those in attendance to review and sign each page to indicate that your notes accurately reflect what was discussed in the meeting. Keep in mind that more than likely, they will refuse to sign your notes, even if they accurately reflect what was said in the meeting. Don t let that bother you. 4

6 4. Leave a copy of the notes and mail a copy of the notes. Regardless of whether the Administrator and other participants of the meeting sign or refuse to sign your notes, ask them to make a copy of the notes before you leave the facility. Leave the copy with them and have them sign something acknowledging that you left a copy of your notes with them and that you have asked them to place the notes in your family member s chart to reflect the meeting. Take the original notes home with you and make another copy. Prepare a letter to the Administrator enclosing a copy of the notes. Your letter should say something like this: Dear [NAME OF ADMINISTRATOR]: Thank you for meeting with me on [INSERT DATE] to discuss the concerns I have about the care my mother is receiving at your facility. My notes reflect that [IDENTIFY ALL THOSE PRESENT] were also present at the meeting. As you know, I took notes during our meeting. After the meeting was over, I asked you to review and sign the notes I had taken, but you refused to do so. Before I left the facility, I had a copy of the notes made and left them with you and asked you to put them in my mother s chart. Enclosed with this letter is another copy of the notes I took. Please place a copy of these notes in my mother s chart so the contents of our meeting are accurately reflected. Thank you. [YOUR SIGNATURE] 5. Make sure that you keep a copy of the letter and the original notes in your possession. Be sure that you keep a copy of your letter and the original notes with you in a safe place in the event you need to show them to an attorney. Keep in mind, your letter and notes may be evidence if your loved one dies or is seriously injured by neglect or abuse at the nursing home. Obviously, your first hope is that the facility will recognize your concerns and take better care of your family member, but, as I learned in Boy Scouts, always be prepared. 6. Send The Letter And Notes Certified Mail. Mail the letter and notes to the facility to the attention of the nursing home Administrator. MAKE SURE THAT YOU SEND THEM CERTIFIED MAIL WITH RETURN RECEIPT. If you send the letter return receipt requested, the facility will have to sign for the letter when it is received which proves receipt. If you don t send it certified mail with return receipt requested, the nursing home will likely deny that they ever received your letter and you will be unable to prove they did so. When you get the return receipt back, staple it to your letter and notes and keep them in a safe place. 5

7 Why go to all this trouble? Here is what I ve learned in handling cases against the nursing home industry since 2001: Nursing homes often have a problem with the truth. The sad reality is that many nursing homes train their employees to say whatever they have to say to satisfy you at that particular moment and once you leave, they forget about the conversation, especially if they have told you that they would do something to provide better care for your loved one. (Or worse yet, they document that you had glowing compliments about the care they are providing and neglect to mention your complaints). If you have no recording or accurate notes from your meeting, you have no proof that the meeting even took place, much less any proof of promises they made on how to provide better care for your family member. Of course, even with notes, they can deny that they promised anything (which is why they likely won t sign a copy of the notes) but it makes your case stronger in the event something bad happens and your loved one suffers an injury as a result. If you have a loved one who dies or is seriously injured as a result of nursing home abuse or neglect always put the interests of your loved one first. The nursing home may tell you the problem is not that bad or to wait before acting. You have to make your own decision. In this kind of situation here is what you should do: 1. Get your loved one the medical care she needs. 2. Make a written complaint with the nursing home. 3. File a complaint with the Missouri Department of Health and Senior Services by calling their elder abuse/neglect hotline at If necessary, contact an attorney who has experience handling cases of nursing home abuse and neglect. Want More Information About Nursing Home Abuse And Neglect in Missouri? What is nursing home abuse and neglect? What should I look for when placing a loved one in a nursing home? What do I do if abuse or neglect happens to my loved one? How do I choose the right attorney for my case? What is my case worth? What actually happens in a lawsuit? visit and request a free copy of David Terry s book about nursing home abuse and neglect in Missouri. If you are concerned about a loved one in a nursing home or had a family member who died or was injured by neglect or abuse at a nursing home, this is the next book on your reading list. Request it for free at (314) Terry Law Firm 8200 Olive Blvd. St. Louis, Missouri Tel: (314) Fax (314)